The Principles of Oliver Wendell Holmes 5

Whose experience? The experience, Holmes said, of “an intelligent and prudent member of the community.” He didn’t mean by this a particularly intelligent and prudent person—a judge, for in¬stance. He meant, precisely, a person who is neither particularly prudent nor particularly imprudent, an “average member of the community”—in other words, a jury. “When men live in society,” he explained in The Common Law, “a certain average of conduct, a sac¬rifice of individual peculiarities going beyond a certain point, is nec¬essary to the general welfare. If … a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors … his slips are no less troublesome to his neighbors than if they spring from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.” Putting it this way made blameworthiness, Holmes thought, into what he approvingly called “an external standard,” a standard before which the defendant’s state of mind (a legal imponderable anyway) becomes irrelevant. “A man may have as bad a heart as he chooses,” as he put it in “Trespass and Negligence,” “if his conduct is within the rules.”
“The reasonable man” is the phrase commonly associated with this theory of liability. Holmes didn’t coin it—it began appearing in American and English opinions around 1850—but, along with his English friend Frederick Pollock, he probably did as much as anyone to define and establish it. What makes the concept work (on Holmes’s theory) is that it represents a composite. It is a collective noun, a statistical fiction, an averaging out across the whole popula¬tion. The “reasonable man” knows, because “experience” tells him, that a given behavior in a given circumstance—say, taking target practice in a populated area—carries the risk of injuring another person. Of course, any action in any circumstance carries some risk, however remote, of injuring another person; and reasonable people know this. But this knowledge is not what reasonableness consists in. What reasonableness consists in is the knowledge of the greater or lesser probability of an injury being caused by such and such an action in such and such circumstances. “Even in the domain of knowledge,” as Holmes put it, “the law applies its principle of aver- ages.
By putting negligence at the center of tort liability, Holmes got accused, by some twentieth-century commentators, of making it easier for industry to escape liability for injuries, to workers or cus¬tomers, incidental to its enterprise—injuries for which it would have had to pay under a theory of strict liability. But Holmes did accept a principle of strict liability for what he called “extra- hazardous” activity. Under this principle, a company that uses dyna¬mite in the normal course of its business, for example, can be held accountable for any injuries it causes, even if it has taken reasonable precautions to avoid them. But Holmes didn’t regard strict liability as inconsistent with the concept of reasonableness, or even with the concept of negligence; for the activities society labels extra-hazardous are just activities experience has led the reasonable man to believe to be risky per se. “Negligence” is infected a little by the kind of moral coloration Holmes deprecated in legal language: it suggests a personal failing on the part of the defendant. But all Holmes meant by it was acting in the face of foreseeable risk. We may have perfectly honorable reasons for doing so, but we also have to be willing to take our legal chances.
When Holmes remarked, therefore, in “The Path of the Law,” that although “for the rational study of the law the black-letter man may be the man of the present. . . the man of the future is the man of statistics and the master of economics,” he meant that the more it became obvious that legal liability can be thought of as a function of the probability of injury, and that courts will weigh the cost of avoiding such injuries against the social benefit of the activity in question, the more irrelevant a knowledge of formal legal doctrine would be to the ability to predict what courts will do. In his theory of torts, Holmes did what Charles Darwin did in his theory of evolu¬tion by chance variation and James Clerk Maxwell did in his kinetic theory of gases: he applied the great discovery of nineteenth- century science, which was that the indeterminacy of individual behavior could be regularized by considering groups statistically at the level of the mass, to his own special field.
The advantage of the “reasonable man” standard (in Holmes’s view) is that it regularizes the business of evaluating conduct without locking courts into the application of codified principles guaranteed to break down whenever they are confronted with a hard case, or with a mutation in social custom. The disadvantage is that in practice, juries are not always consistent. This group of twelve may regard as reasonable what that group of twelve regards as careless. Holmes did think that since in many tort cases the facts, legally speaking, are essentially the same, judges, having seen the way juries generally dispose of such cases, should be able to determine liability as a matter of law. And in his own career as a judge, he did occasionally try to establish such common law rules, usually with disastrous results. The most famous of these is the Supreme Court case of Baltimore & Ohio Railroad v. Goodman (1927), which arose out of the death of a motorist at a railroad crossing where his view of the track was obstructed. Holmes overturned a decision for the plaintiff on the principle (newly laid down by him) that a motorist arriving at a railroad crossing has a duty to stop the car, get out, and look up and down the track before proceeding. “It is true,” Holmes explained, “that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the courts.” Holmes did not drive. After his death, the rule was thrown out by Benjamin Cardozo.
Holmes was wrong in Baltimore & Ohio v. Goodman, but he was wrong on his own theoretical ground. It just happens not to be the custom to get out of the car at railroad crossings, and therefore it was almost certainly not (as Holmes probably suspected) sympathy for the widow Goodman that dictated the lower-court result, but, precisely, the application of the community standard of what it is reasonable to do at a railroad crossing. Holmes did not mean to contradict his own argument against reliance on abstract principles in Goodman; he only meant to increase the degree of predictability in tort law. And this emphasis on predictability is tied to the third significant element in Holmes’s idea of “experience,” which is what might be called the imprecision factor.

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