Custom, noncustomary practice, and negligence

Columbia Law Review

Volumn 109, Issue 7, 2009, Pages 1784-1822

  Abraham, Kenneth S ^a  

^a NONE

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EID: 70849104208     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (148)

1. Cf. John R. Searle, How to Derive "Ought" from "Is," 73 Phil. Rev. 43, 56-58 (1964) (addressing circumstances under which statements of fact can give rise to normative statements).
2. The risk-benefit conception of negligence compares the risks posed by an act or omission with its benefits in order to determine whether an actor was negligent This conception found its most famous expression in Judge Learned Hand's opinion in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Qr. 1947) (suggesting that whether act or omission is negligent is function of probability of injury, magnitude of injury if it occurs, and burden of avoiding injury).
3. See Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29, 32-33 (1972) (describing Hand's opinion as adumbrating economic theory of negligence). In contrast, the reasonable prudence conception of negligence is the more traditional notion that negligence is determined by reference to the conduct of the reasonably prudent person.
4. See, e.g., Vaughan v. Menlove, (1837) 132 Eng. Rep. 490, 490 (C.P.) (holding care taken by prudent man is test for negligence);
5. see also Benjamin C. Zipursky, Sleight of Hand, 48 Wm. & Mary L. Rev. 1999, 2034-40 (2007) (suggesting "civil competency" best expresses notion of ordinary care).
6. Restatement (Third) of Torts: Liab. for Physical Harm § 13 (Proposed Final Draft No. 1, 2005).
7. Clarence Morris, Custom and Negligence, 42 Colum. L. Rev. 1147 (1942).
8. See, e.g., William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 131-33 (1987) (arguing law should treat custom differently in high and low transaction cost situations);
9. Richard A. Epstein, The Path to The T.J. Hooper. The Theory and History of Custom in the Law of Tort, 21 J. Legal Stud. 1, 4 (1992) (contending custom should govern situations in which transaction costs are low);
10. Steven Hetcher, Creating Safe Social Norms in a Dangerous World, 73 S. Cal. L. Rev. 1, 4-8 (1999)
11. [hereinafter Hetcher, Safe Social Norms] (examining sources and functions of customs);
12. Steven Hetcher, The Jury's Out: Social Norms' Misunderstood Role in Negligence Law, 91 Geo. L.J. 633, 634-36 (2003) (identifying different ways in which norms interact with jury's role in negligence cases);
13. Gideon Parchomovsky & Alex Stein, Torts and Innovation, 107 Mich. L. Rev. 285, 286 (2008) (arguing admission of custom evidence in negligence, medical malpractice, and products liability actions inhibits innovation).
14. See Restatement (Third) of Torts: Liab. for Physical Harm § 13 cmt. b (indicating evidence of compliance with custom bears on whether further precautions were available to actor and cautions jury that its ruling has implications for many other parties);
15. id. cmt. c (indicating evidence of departure from custom tends to answer relevant questions regarding availability and feasibility of appropriate precautions).
16. See, e.g., Morris, supra note 4, at 1147-53.
17. The only important exceptions are certain product design and medical malpractice cases, whose significance I discuss infra Part II.
18. Dan B. Dobbs, The Law of Torts § 163, at 394 (2000)
19. (citing Rentz v. Brown, 464 S.E.2d 617 (Ga. Ct App. 1995)).
20. Although the courts rarely engage in an express headcount, discussions of the custom rule seem to me to presuppose that a practice must be followed by at least a majority of relevant actors in order to qualify as a custom. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 33, at 193 (5th ed. 1984) (referring, in discussing custom rule, to "usual" conduct of others and to actor who "does only what everyone else has done").
21. Although evidence of compliance with or departure from custom may be used offensively or defensively by either the plaintiff or the defendant, the more common scenarios involve a plaintiff offering such evidence offensively to show the defendant's negligence or the defendant offering such evidence defensively to show reasonable care. For convenience, at various points in the remainder of the Essay, I refer to the plaintiff and the defendant in these scenarios, without intending to preclude those in which the plaintiff introduces custom evidence defensively or the defendant introduces it offensively.
22. That is, the defendant would introduce evidence (1) identifying the practice that it alleges is a custom; (2) that the practice is sufficiently widespread to constitute a custom; and (3) that the defendant complied with the alleged custom. Plaintiff could then (4) cross-examine the witnesses through whom such evidence was introduced. Thereafter the plaintiff would be entitled to introduce evidence that (5) the practice in question is not a custom and (6) even if the practice is a custom, and even if the defendant did not depart from the custom, following the custom was negligent Finally, the defendant could (7) cross-examine the witnesses through whom this evidence was introduced.
23. In the majority of jurisdictions this is a question for the finder of fact; however, in some jurisdictions this issue is for the court but depends on the resolution of a question of fact See, e.g., Askin v. Dalgarno, 293 F.2d 424, 426 (10th Cir. 1961) (stating whether a practice constitutes a custom is a question of fact);
24. Sanders v. City of Chicago, 714 N.E.2d 547, 554-55 (111. App. Ct 1999) (same);
25. Walters v. Kellam & Foley, 360 N.E.2d 199, 216 (Ind. Ct App. 1977) (same);
26. Davis v. Gatewood, 299 S.W.2d 504, 509 (Mo. 1957) (same);
27. Dallas v. F.M. Oxford, Inc., 552 A2d 1109, 1113 (Pa. Super. Ct 1989) (same).
28. A number of states have pattern jury instructions regarding compliance with or departure from custom specifying precisely such an instruction. See, e.g., Judicial Council of CaI., New, Revised, and Revoked Civil Jury Instructions 413 (2009) ("You may consider customs or practices in the community in deciding whether [name of plaintiff/defendant] acted reasonably. Customs and practices do not necessarily determine what a reasonable person would have done in [name of plaintiff/defendant]'s situation. They are only factors for you to consider.");
29. IA Comm. on Pattern Jury Instructions, Ass'n of Justices of the Supreme Court of the State of N.Y., New York Pattern Jury Instructions: Civil 2:16 (3d ed. 2009) ("[Y]ou may take that general custom or practice into account in considering the care used by defendant in this case. However, a general custom or practice is not the only test....").
30. See, e.g., Fed. R. Evid. 401-402 (stating all relevant evidence is admissible, with certain exceptions).
31. See Restatement (Third) of Torts: Liab. for Physical Harm § 9 (Proposed Final Draft No. 1, 2005) (suggesting existence of unexpected emergency is circumstance "to be taken into account" in determining whether actor has exercised reasonable care);
32. id. § 12 (suggesting above-average skills or knowledge are "to be taken into account" in determining whether actor has exercised reasonable care). Interestingly, a comment to § 295A of the Second Restatement does indicate that custom evidence is to be taken into account Restatement (Second) of Torts § 295A cmt. b (1965).
33. See, e.g., Restatement (Third) of Torts: Liab. for Physical Harm § 11(c) (suggesting adult actor's mental or emotional disability "is not considered" in determining whether conduct is negligent).
34. Distinctive, but not unique. See, e.g., id. § 16(a) (suggesting actor's compliance with pertinent statute, while evidence of nonnegligence, does not preclude finding that actor is negligent).
35. Titus v. Bradford, B. & K. R. Co., 20 A 517, 518 (Pa. 1890) (holding compliance with custom constitutes reasonable care as a matter of law).
36. Id.
37. see also Shadford v. Ann Arbor St. Ry. Co., 69 N.W. 661, 662 (Mich. 1897) (holding compliance with custom is conclusive on issue of reasonable care). Before the celebrated case of The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932), adopted the modern rule, there were even some Second Circuit decisions adopting the safe harbor rule. See, e.g., Adams v. Bortz, 279 F. 521, 525 (2d Cir. 1922) (adopting safe harbor rule);
38. Ketterer v. Armour & Co., 247 F. 921, 931 (2d Cir. 1917) (same).
39. For discussion, see Hetcher, Safe Social Norms, supra note 5, at 14-15 (discussing rule).
40. See Robert L. Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 Ga. L. Rev. 925, 948-58 (1981) (discussing no-duty rules).
41. See Kenneth S. Abraham, The Forms and Functions of Tort Law 161-63 (3d ed. 2007) (explaining concept of assumption of risk sometimes refers to whether defendant breached a duty, i.e., was negligent, but at other times refers to whether plaintiff consciously and negligently took a risk);
42. Stephen D. Sugarman, The Monsanto Lecture: Assumption of Risk, 31 VaI. U. L. Rev. 833, 841-43, 851-52 (1997) (distinguishing these two senses of assumption of risk). Thus, in Titus the entire discussion of the safe harbor rule was buttressed by reference to the victim's familiarity with the custom at issue, and his "ample opportunity to know the risks" in question. Titus, 20 A. at 518.
43. For examples of cases adopting this rule, see Redfield v. Oakland Consol. St-Ry. Co., 43 P. 1117, 1119 (Cal. 1896) ;
44. Phoenix Assurance Co., of London v. Tex. Holding Co., 252 P. 1082, 1087 (Cal. Dist Ct App. 1927);
45. Burke v. S. Boulder Canon Ditch Co., 203 P. 1098, 1099 (Colo. 1922);
46. Bassett v. Shares, 27 A. 421, 423 (Conn. 1893);
47. Mayhew v. Sullivan Mining Co., 76 Me. 100, 112 (1884);
48. Jenkins v. Hooper Irrigation Co., 44 P. 829, 831 (Utah 1896).
49. Epstein, supra note 5, at 5, 9-10.
50. Id. at 4-5. Epstein himself argues that strict liability should apply in the stranger cases, and for this reason would hold compliance with custom irrelevant in such cases.
51. For at least a time, California applied the irrelevance rule to accidents involving strangers but the safe harbor rule to accidents involving those in relationships. For instance, Phoenix Assurance Co., 252 P. at 1087, distinguishes Webber v. Bank of Tracy, 225 P. 41 (Cal. Dist Ct App. 1924), on this basis. Similarly, Utah applied the irrelevance rule to accidents between strangers, fenkins, 44 P. at 830, but the safe harbor rule to accidents involving those in relationships, Roth v. Eccles, 79 P. 918, 919 (Utah 1905). But these distinctive treatments long ago disappeared.
52. See, e.g., Tex. & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 470 (1903) (holding that "[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence," not by custom);
53. Wabash Ry. Co. v. McDaniels, 107 U.S. 454, 458-61 (1882) (rejecting defendant's contention that compliance with custom satisfied its duty as a matter of law);
54. Shandrew v. Chi. St., P., M. & O. Ry. Co., 142 F. 320, 324-25 (8th Cir. 1905) (holding that what other railroads customarily do is only evidence of reasonable care).
55. 60 F.2d 737, 740 (2d Cir. 1932).
56. Cunningham v. Fort Pitt Bridge Works, 47 A. 846, 846 (Pa. 1901).
57. See, e.g., Cent. Granaries Co. v. Ault, 107 N.W. 1015, 1016 (Neb. 1906) (holding custom is the "unbending test of negligence").
58. As the court in Mayhew v. Sullivan Mining Co., 76 Me. 100, 112 (1884), put it, "[t]he gross carelessness of the act appears conclusively upon its recital."
59. Restatement (Second) of Torts § 295A & cmt. b (1965). The only explanation for the addition of this Section that I have been able to locate in the ALI annals is a 1958 note that the Section is new. Id. § 295A note, at 108 (Council Draft No. 4, 1958).
60. See Morris, supra note 4, at 1147-53.
61. Id. at 1148.
62. Id. at 1148-49.
63. Id. at 1151-52.
64. Id. at 1149.
65. Restatement (Third) of Torts: Liab. for Physical Harm § 13 cmt. b (Proposed Final Draft No. 1, 2005). Similarly, in his treatise, Professor Dobbs devotes only one sentence, albeit a thorough one, to this point.
66. See Dobbs, supra note 9, § 164, at 396.
67. 60 F.2d 737, 740 (2d Cir. 1932).
68. Tex. & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470 (1903).
69. See, e.g., Henry R. Miller, Jr., The So-Called Unbending Test of Negligence, 3 Va. L. Rev. 537, 537 (1915) (arguing safe harbor test is "unsound" and is "likely to foster injustice and even iniquitous practices on the part of employers and others").
70. Restatement (Third) of Torts: Liab. for Physical Harm §§ 9, 12.
71. Id. § 13 ("An actor's compliance with the custom of the community... is evidence that the actor's conduct is not negligent but does not preclude a finding of negligence.").
72. See supra note 12 (listing cases).
73. See Old Chief v. United States, 519 U.S. 172, 187 (1997) ("Unlike an abstract premise... a piece of evidence may address any number of separate elements, striking hard just because it shows so much at once....").
74. Patrick J. Kelley & Laurel A. Wendt, What Judges Tell Juries About Negligence: A Review of Pattern Jury Instructions, 77 Chi.-Kent L. Rev. 587, 595, 625-82 (2002) (quoting pattern jury instructions on negligence);
75. Zipursky, supra note 2, at 2014-17 (discussing instructions).
76. Comm. on Pattern Jury Instructions, supra note 13, at 2:10.
77. Civil Jury Instructions Comm., Idaho Civil Jury Instructions 2.00.1 (2003).
78. Jury Instructions Comm., Ohio Judicial Conference, Ohio Jury Instructions: Civil Instructions 404.01 (2008).
79. For example, the New York instruction on custom provides, among other things, that "a general custom or practice is not the only test; what you must decide is whether, taking all the facts and circumstances into account, defendant acted with reasonable care." Comm. on Pattern Jury Instructions, supra note 13, at 2:16.
80. See Dobbs, supra note 9, § 165, at 400 (noting parties may contest whether custom has been justifiably adopted based on risk-benefit test).
81. Even the Third Restatement, which comes close to adopting the risk-benefit approach, indicates only that risk and benefit are the "[p]rimary factors" in ascertaining whether conduct is reasonable. Restatement (Third) of Torts: Liab. for Physical Harm § 3 (Proposed Final Draft No. 1, 2005).
82. See Landes & Posner, supra note 5, at 132-33 (predicting custom will be defense in low transaction cost relational situations but not in high transaction cost stranger situations);
83. Epstein, supra note 5, at 4-5 (discussing relevance of custom in stranger cases and disputes arising out of consensual arrangements);
84. see also Robert C Ellickson, Order Without Law: How Neighbors Settle Disputes 4 (1991) (explaining how utilitarian norms arise among neighbors).
85. See Epstein, supra note 5, at 4-5 (arguing custom "should be regarded as conclusive evidence of due care" for parties in relationship).
86. See generally R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).
87. See Hetcher, Safe Social Norms, supra note 5, at 42-55 (describing emergence and functioning of coordination customs).
88. Eric A Posner, Law and Social Norms 177-78 (2000);
89. Hetcher, Safe Social Norms, supra note 5, at 44.
90. See Morris, supra note 4, at 1152 ("A craftsman who departs from the methods of his craft is not necessarily a wrongdoer; he may be innocuously asserting his individuality, or he may be ahead of his times.").
91. The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932).
92. A dhird argument that is occasionally made concerns the role of custom in inducing reliance. The amount of care that is reasonable may depend on the level of care that is typically taken by others. Custom that induces, or may induce, reliance is relevant because the level of care that is reasonable for a potential injurer to take depends on the level of care that potential victims take. The Third Restatement makes this point cryptically, indicating that when there is reliance on a custom, then the custom "establishes the standard by which those engaging in the activity assume they are bound." Restatement (Third) of Torts: Liab. for Physical Harm § 13 cmt. d (Proposed Final Draft No. 1, 2005). The important point, however, is not that reliance by potential victims creates an awareness on the part of potential injurers that they are "bound" by the custom relied upon. The point is that if reliance results in less care by potential victims, this may make it unreasonable for potential injurers to depart from the custom in question.
93. Admittedly, delineating the risks and benefits posed by an activity may also involve describing an activity and thereby educating the jury about it. But custom evidence is necessarily grounded in experience and therefore is always concrete and educative. In contrast, when risk-benefit evidence is hypothetical and abstract rather than concrete and experience based, it is likely to have much less educational value than custom evidence.
94. See, e.g., Morris, supra note 4, at 1147-53 (analyzing advantages and disadvantages of admission of custom evidence).
95. For two of the few relevant holdings, see Rentz v. Brown, 464 S.E.2d 617, 619 (Ga. Ct App. 1995) (holding evidence of mere practice to be unable to support a jury verdict);
96. Garthe v. Ruppert 190 N.E. 643, 646 (N.Y. 1934) (holding evidence of practices that are not customs to be "incompetent").
97. Learned Hand's canonical decision in The T.J. Hooper, 60 F.2d at 740, is only the most prominent example.
98. For others, see Rhine v. Duluth, M. & I. Ry. Co., 297 N.W. 852, 854 (Minn. 1941) (holding evidence "fell far short of establishing a custom");
99. Davis v. Gatewood, 299 S.W.2d 504, 511 (Mo. 1957) (holding testimony regarding putative custom "failed to show a general uniform, certain and notorious practice and usage").
100. This rule of law is set out clearly in Dobbs, supra note 9, § 165, at 400-03.
101. 24 F.3d 39, 41 (9th Cir. 1994). It is not clear from the opinion in Andrews whether the evidence of "some" other airlines was admitted to show the frequency with which other airlines took this precaution or merely to show the availability of this precaution.
102. See also Schillie v. Atchison, Topeka & Santa Fe Ry. Co., 222 F.2d 810, 814 (8th Cir. 1955) (upholding admission of practice evidence);
103. Lee v. Pa. R.R. Co., 192 F.2d 226, 229-30 (2d Cir. 1951) (upholding admission of evidence of a practice that had been used widely but not universally);
104. DeLibero v. Q Clubs, Inc., 956 So. 2d 1286, 1287-88 (Fla. Dist. Ct App. 2007) (stating in dicta that practice evidence would be admissible only with cautionary instruction).
105. 60 F.2d at 739-40. The structure of the situation is the same when there is already an affirmative precaution that is customarily taken - for example, having radios - but there is an additional practice that is not, or is not yet, customary, such as also having a global positioning system (GPS) on board.
106. See, e.g., supra note 63 (citing cases where parties argued that incidence of practice proved custom).
107. See Fed. R. Evid. 703 (providing experts can reasonably rely upon facts or data in forming opinions or making inferences, even if those facts or data would not be admissible evidence).
108. See Fed. R. Evid. 705 (providing experts are not required to disclose underlying facts or data upon which their opinions are based, but may be required to disclose them on cross-examination).
109. Dobbs, supra note 9, § 165, at 401.
110. See id. (suggesting there must be evidence that practice is well known and well defined).
111. See id. ("Even an occasional practice may show... that the harm addressed by the practice is foreseeable....").
112. See Morris, supra note 4, at 1147-50.
113. In practice, federal statutes and regulations, rather than the purely common law considerations in this hypothetical, address much of the conduct of trucks on the highways, pursuant to rules promulgated by the Federal Motor Carrier Safety Administration under 49 U.S.C. §§ 30101-30170 (2006). See, e.g., 49 C.F.R. § 391.11 (2008) (specifying truck driver qualifications);
114. id. § 395.3 (specifying number of hours truck drivers may spend on road).
115. Restatement (Third) of Torts: Prods. Liab. § 2(b) (1997).
116. See id. cmt. d ("How the defendant's design compares with other, competing designs in actual use is relevant to the issue of whether the defendant's design is defective.");
117. id. cmt f ("Furthermore, other products already available on the market may serve the same or very similar function at lower risk and at comparable cost Such products may serve as reasonable alternatives to the product in question.");
118. see also Linegar v. Armour of Am., Inc., 909 F.2d 1150, 1154 (8th Cir. 1990) ("The Missouri Highway Patrol could have chosen to buy, and Armour could have sold the Patrol, a [bullet proof] vest with more coverage....").
119. See generally David A Urban, Custom's Proper Role in Strict Products Liability Actions Based on Design Defect, 38 UCLA L. Rev. 439 (1990) (analyzing the role played by custom in products liability).
120. Restatement (Third) of Torts: Prods. Liab. § 2 cmt f.
121. See id. cmt f, illus. 8 (stating that plaintiff could provide widespread use of traditional products as reasonable alternative design).
122. See Dobbs, supra note 9, § 242, at 633-34 ("When there are two schools of thought or custom in the medical community about a given procedure, the defendant is free to follow either custom widiout liability.").
123. See, e.g., Katsetos v. Nolan, 368 A.2d 172, 181 (Conn. 1976) (discussing "two schools of thought" rule);
124. Jones v. Chidester, 610 A2d 964, 969 (Pa. 1992) (adopting respectable minority rule).
125. Parchomovsky & Stein, supra note 5, at 310-12.
126. Id. at 289.
127. Id.
128. Id. at 312-14.
129. See Ellen E. Deason, Court-Appointed Expert Witnesses: Scientific Positivism Meets Bias and Deference, 77 Or. L. Rev. 59, 101 (1998) ("[R]emoving party sponsorship of expert testimony does not eliminate all significant sources of expert bias.").
130. See Fed. R. Evid. 401 (defining relevant evidence widiout reference to party sponsoring it);
131. James Bradley Thayer, A Preliminary Treatise on Evidence 269 (1898) (presupposing same proposition in asserting that relevance is "an affair of logic and experience, and not at all of law").
132. Fed. R. Evid. 403.
133. Courts commonly weigh the probative value of proffered evidence against the disruption and delay entailed in any "mini-trial" that would result from the admission of that evidence. See, e.g., State v. Gibney, 825 A.2d 32, 40 (Vt 2003) (weighing "limited probative value of defendant's proffered evidence" against "prospect of confusion of the issues by a twenty-witness mini-trial").
134. Restatement (Third) of Torts: Liab. for Physical Harm § 10 (Proposed Final Draft No. 1, 2005).
135. Id. § 11.
136. Id. § 12.
137. I am indebted to Frederick Schauer for acquainting me with this feature of the law of evidence, which reflects the view that juries are capable of determining what happened on a particular occasion without evidence of what generally happens in similar situations.
138. For examples of this approach, see Fed. R. Evid. 404(a) (providing that evidence of character is not admissible to prove action in conformity with it on particular occasion);
139. Fed. R. Evid. 404(b) (providing that evidence of past crimes, wrongs or acts is not admissible to prove character in order to show action in conformity therewith on particular occasion);
140. United States v. Fosher, 449 F. Supp. 76, 77 (D. Mass. 1978), aff d, 590 F.2d 381 (1st Cir. 1979) (excluding under Fed. R. Evid. 702 expert testimony regarding general unreliability of eyewitness testimony, offered to undermine eyewitness testimony in particular case).
141. Restatement (Third) of Torts: Liab. for Physical Harm § 3 cmt. e.
142. Morris made this point long ago: "Modern courts are curiously prone to dodge the responsibility of deciding the negligence issue - it goes to the jury even when the defendant's conduct is not in dispute, and even diough a verdict of negligence would be outrageous." Morris, supra note 4, at 1156. More recently, the Supreme Judicial Court of Massachusetts made the same point more succincdy, noting "judicial intrusion into jury decision-making in negligence cases is exceedingly rare." MacDonald v. Ortho Pharm. Corp., 475 N.E.2d 65, 71 (Mass. 1985).
143. See, e.g., Keeton et al., supra note 9, § 33, at 195 (indicating that evidence of actor's past conduct or habits is not evidence of reasonable care). An even more prominent example of this phenomenon is tort law's reluctance to permit the use of statistical evidence or evidence of market share to prove causation. Rather, the courts require proof of but for causation in the particular case at issue. See, e.g., Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67, 75 (Iowa 1986) (rejecting market-share liability);
144. Smith v. Rapid Transit, 58 N.E.2d 754, 755 (Mass. 1945) (holding evidence that mathematical chances favored proposition that bus owned by defendant injured plaintiff was legally insufficient to support verdict for plaintiff);
145. Frederick Schauer, Profiles, Probabilities, and Stereotypes 79-107 (2003) (discussing issues arising out of Smith and similar cases, including effectiveness of evidence relying on probabilistic inferences).
146. See Kenneth S. Abraham, The Trouble with Negligence, 54 Vand. L. Rev. 1187, 1195-97 (2001) (discussing "conscience of the community" argument for submitting negligence cases to juries).
147. Leon Green, Judge and Jury 185 (1930).
148. Oliver Wendell Holmes, Jr., The Common Law 123 (1881).