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Functions of Judge and Jury in Negligence Cases, 58 Yale L.J. 667 (1949)


The jury system plays an important part in the administration of accident law. This means that procedural rules and devices which allocate power between court and jury may have great bearing on the way accident law actually works. And it also means that the practical implications of many a rule of substantive law can scarcely be appreciated without an understanding of just how the rule affects that allocation of power. This has been pointed out before. But there is a good deal of reason to believe that much of accident law is now in a period of transition from older notions based on individual blame or fault towards some form of social insurance roughly comparable to workmen's compensation. And it is in such a time of flux, when legal theory is apt to be laggard, that the jury is likely to play a particularly significant role--one which calls for frequent reexamination and reappraisal. In trying to analyze the functions of judge and jury, let us first take up the question where in theory the law draws the line of division, then inquire into the ways in which each branch of the tribunal is sought to be kept within its theoretical sphere, and draw some conclusions as to the practical effectiveness of these means. Finally we may be able to make some generalizations about the practical implications of certain kinds of substantive rules--implications which might not be seen, if their procedural setting should be overlooked.

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Functions of Judge and Jury in Negligence Cases, 58 Yale L.J. 667 (1949)

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