Social Norms and Judicial Rulemaking : Commitment to Political Process and the Basis of Tort Law

This Article looks at the respective roles of judges and juries in common law civil litigation and considers the legitimacy of both in light of our essential commitment to majoritarian politics. It concludes that the legitimacy of judicial rule making is highly suspect and can be justified when necessary to protect the political process by policing fraud and under a few other narrow sets of circumstances. Jury decision-making, on the other hand, is by far more defensible representing, as it does, a form of direct participatory democracy.Thus, although the tort reform debate often focuses on the conflict between legislative bodies and the judiciary, this is largely a distraction. The more important question deals with the allocation of decision-making power between the jury, which makes normative judgments about behavior on behalf of the local community, and the legislatures, which make such judgments on behalf of larger political subdivisions