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 comfortable
classes of the community were a good deal frightened. I suspect that
this fear has influenced judicial action both here and in England, yet
it is certain that it is not a conscious factor in the decisions to
which I refer. I think that something similar has led people who
no longer hope to control the legislatures to look to the courts as
expounders of the constitutions, and that in some courts new principles