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The Hand Formula In The Draft "Restatement (Third) Of Torts": Encompassing Fairness As Well As Efficiency Values, Kenneth W. Simons
The Hand Formula In The Draft "Restatement (Third) Of Torts": Encompassing Fairness As Well As Efficiency Values, Kenneth W. Simons
Vanderbilt Law Review
The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible for this draft, the Hand formula can accommodate both economic and fairness accounts of negligence law.
Is he correct? I will argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. At the same time, however, the current Discussion Draft is deficient in some respects. It does not adequately allay the fears of …