part of the community is to make
certain classes of persons insure the safety of those with whom they
deal. Since the last words were written, I have seen the requirement
of such insurance put forth as part of the programme of one of the best
known labor organizations. There is a concealed, half conscious battle
on the question of legislative policy, and if any one thinks that it can
be settled deductively, or once for all, I only can say that I think he
is theoretically wrong, and that I am certain that his conclusion will
not be accepted in practice semper ubique et ab omnibus.

Indeed, I think that even now our theory upon this matter is open to
reconsideration, although I am not prepared to say how I should decide
if a reconsideration were proposed. Our law of torts comes from the
old days of isolated, ungeneralized wrongs, assaults, slanders, and the
like, where the damages might be taken to lie where they fell by legal
judgment. But the torts with which our courts are kept busy today are
mainly the incidents of certain well known businesses. They are injuries
to person or property by railroads, factories, and the like. The
liability for them is estimated, and sooner or later goes into the price
paid by the public. The public really pays the damages, and the question
of liability, if pressed far enough, is really a question how far it is
desirable that the public should insure the safety of one whose work it
uses. It might be said that in such cases the chance of a jury finding
for the defendant is merely a chance, once in a while rather arbitrarily
interrupting the regular course of recovery, most likely in the case
of an unusually conscientious plaintiff, and therefore better done
away with. On the other hand, the economic value even of a life to the
community can be estimated, and no recovery, it may be said, ought to go
beyond that amount. It is conceivable that some day in certain cases we
may find ourselves imitating, on a higher plane, the tariff for life and
limb which we see in the Leges Barbarorum.

I think that the judges themselves have failed adequately to recognize
their duty of weighing considerations of social advantage. The duty is
inevitable, and the result of the often proclaimed judicial aversion
to deal with such considerations is simply to leave the very ground and
foundation of judgments inarticulate, and often unconscious, as I have
said. When socialism first began to be talked about, the c