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On Determining Negligence: Hand Formula Balancing, The Reasonable Person Standard, And The Jury, Stephen G. Gilles
On Determining Negligence: Hand Formula Balancing, The Reasonable Person Standard, And The Jury, Stephen G. Gilles
Vanderbilt Law Review
trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative.
On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)")--which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has …