Learned Hand

Another example is the hand formula.

The Ford Pinto case produced outrage, but the legal standard that governs negligence in American courts today is itself based on the same principle, the utilitarian formula, developed by Judge Learned Hand in a 1947 case called the United States v. Carroll Towing.

The hand formula states that a defendant is liable for negligence when the burden of taking precautions, which we're going to call B, is less than the probability of harm, which we're going to call P, multiplied by the magnitude of the harm, which we're going to call L.

In algebraic terms then, if B is less than P times L, you should have taken precautions.

And the common law actually has a very specific, almost mathematical way of evaluating whether a company was negligent.

It is known as the Learned Hand formula, established in a famous nineteen forty-seven case involving a runaway barge in New York Harbor.

Okay, I love when the law tries to do math, but let's ground this for the listener first.

Sure.

Yes, you are.

Because the cost to fix the brakes was low, and the risk of crashing was high.

How does the Learned Hand formula actually formalize that?

You've captured the essence perfectly.

is what people care about.

And there's a famous speech by a great American judge who revels in the name of Learned Hand.

Learned Hand never got to the Supreme Court, I think largely because he didn't want to.

He found it much more interesting being a level below.

In the late 1940s, I think it was, he gives us a talk in, not the late 1940s, but the mid-1940s in Central Park at a time when the war is not going well.

And sometimes the rule of law might seem itself to be complicit in injustice because the rule of law does tell us, for example, that in a legal order where there's parliamentary supremacy, that whatever parliament enacts is the law, even if we strongly disagree with its content and think that its content is unjust.

But still this interesting combination of procedure and substance that exists in any rule of law governed country does provide a resource to challenge injustice and to bring it to light.

bringing it to light doesn't mean that one gets rid of the injustice, but it does alert people to the presence of the injustice and picking up somewhat on the comment I made to you before drawing on learned hand, then it really depends on how people react.

Moderating today's discussion is the Honorable Jennifer M. Perkins.

Judge Perkins serves on the Arizona Court of Appeals, Division I.

As a reminder to any of our attendees who are seeking CLE credit, we will post a CLE code in the chat box at some point during the presentation, so please pay attention.

At that time, a slide will appear noting that the CLE code has been posted.

One last note, toward the end of the program, we'll take questions from the audience.

You can use the Q&A button at the bottom of your screen in Zoom to ask a question.

With that, Judge Perkins, the floor is yours.

Great.

But when, this is something, a very famous quote by one of the Supreme Court justices.

His name is Learned Hand or something.

Judge Hand.

His last name was Hand.

Hmm.

And that's actually a quote by a guy named Justice Learned Hand who was a Supreme Court justice I think in the 1890s.

Hmm.

Uh, but there truly are two sets of tax codes, and most people use the wrong one.

And I believe you approach it with a fair degree of humility, that you think you're right, but you may not be.

You know, that was the, the famous quote that Justice Scalia loved from, uh, from Learned Hand, you know, the, the spirit of liberty.

The spirit of liberty is the spirit that's not too sure that it's right.

So there's a humility point here.

It's called the hand formula.

Yes, formulated by the legendary judge Learned Hand in the 1940s case United States v. Carroll Towing.

The hand formula is an actual algebraic equation, B is less than P times L.

Break that down for us.