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Two great movements in the American common law in the second half of this century put into question the jury's role in deciding normative issues. The shift from rules to standards has given the jury more say regarding what is inappropriate conduct because the jury makes that normative decision at the point of application of a standard. The movement from rules to standards has been especially pronounced in contract law. Meanwhile in tort law, in reaction to a perceived liability explosion, judges have taken the power to define what is inappropriate conduct from the jury by announcing no-duty rules. These two movements raise similar questions regarding the relation of the choice between rules and standards to the allocation of normative authority between judge and jury, and in particular, the question whether any values other than the familiar costs and benefits of rules and standards bear on how this authority is allocated. This article argues that other values do weigh on the scale. The American common law manifests a commitment to popular judgment regarding what is inappropriate when conduct foreseeably causes physical harm as well as a commitment that runs in the opposite direction to professional judgment regarding what is inappropriate conduct affecting only economic interests. Because of the latter commitment the choice to define inappropriate conduct in the marketplace by standards need not entail the transfer to the jury of the power to decide what is inappropriate conduct in the first instance. Judges can and do define good faith, improper interference, unjust enrichment, and other legal standards of fair dealing though they do so on a case by case basis. Because of the former commitment judges do not and ought not decide what is reasonable conduct in negligence unless they can frame their decision in the form of a categorical rule that applies beyond the immediate case. This article closes with a discussion of the law of restitution and the concept of abuse of a confidential relationship. While judges historically have defined what is inappropriate conduct in the marketplace, juries have defined what relationships rise above the morality of the marketplace through their power to define when a confidential relationship exists and whether it has been abused. To preserve this power for juries without allowing it to encroach too significantly upon conduct in the commercial sphere the concept of abuse of confidential relationships should be defined as the exploitation of trust for personal gain.

The Jury's Role In Deciding Normative Issues in the American Common Law