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Published online by Cambridge University Press: 05 June 2012
It is true that we think of that common-law duty as though it were imposed before the event, because it demands only “reasonable” care; but that does not specify the conduct required and creates a duty incapable of being known in advance, and it is ascertained and imposed only retroactively. Our excuse is that it is fair to exact conformity to such a standard because it should be the inherited portion of the actor; although never formulated before – being measured by a unique occasion – he will divine it by intuition. Nor is it derived alone from forecasting the probable course of events, though that enters into it. It involves a matching of human interests: it is “legislation” in parvo [in little].
Stronelli v. United States GypsumIntroduction
The focus in this chapter and the next is on the dominant two paradigms of negligence and their relation to the substantive, real-world norms of jurors. The two paradigms I have in mind are the economic account of tort and the corrective justice account of tort. I will explore one important problem that is shared by these accounts. This problem arises with respect to their treatment of the jury. The dominant paradigms marginalize the jury. The effect is to badly skew the account of how the negligence standard receives its content. In particular, the dominant paradigms fail to explain the essential role that the norms of jurors play in filling out the reasonable person standard. In so doing, these paradigms run afoul of the sound jurisprudential tenet that the best explanations of key legal concepts are those that provide a pragmatic explanation of the underlying legal practices.
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