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Revisiting the Learned Hand Formula and Economic Analysis of Negligence

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  • Jeonghyun Kim

Abstract

The Learned Hand formula is enshrined in the law-and-economics literature as the centerpiece of the courts´ way of determining negligence. The orthodox interpretation of it is the conditional application of the Hand formula contingent on the other party´s assumed efficient behavior. Reviewing four tort cases, I show that more consistent explanation for the realized court decisions is the conditional application of the Hand formula contingent on the other party´s actual behavior. The games defined by the alternative approach show that social efficiency is achieved under negligence-based rules only in the case of discrete and joint care.

Suggested Citation

  • Jeonghyun Kim, 2013. "Revisiting the Learned Hand Formula and Economic Analysis of Negligence," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 169(3), pages 407-432, September.
  • Handle: RePEc:mhr:jinste:urn:sici:0932-4569(201309)169:3_407:rtlhfa_2.0.tx_2-c DOI: 10.1628/093245613X668601
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    References listed on IDEAS

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    1. Chung, Tai-Yeong, 1993. "Efficiency of Comparative Negligence: A Game Theoretic Analysis," The Journal of Legal Studies, University of Chicago Press, vol. 22(2), pages 395-404, June.
    2. Grady, Mark F, 1988. "Common Law Control of Strategic Behavior: Railroad Sparks and the Farmer," The Journal of Legal Studies, University of Chicago Press, vol. 17(1), pages 15-42, January.
    3. Jeonghyun Kim, 2004. "A Complete Characterization of Efficient Liability Rules: Comment," Journal of Economics, Springer, vol. 81(1), pages 61-75, January.
    4. Feldman, Allan M. & Frost, John M., 1998. "A simple model of efficient tort liability rules," International Review of Law and Economics, Elsevier, vol. 18(2), pages 201-215, June.
    5. Arlen, Jennifer H., 1990. "Re-examining liability rules when injurers as well as victims suffer losses," International Review of Law and Economics, Elsevier, vol. 10(3), pages 233-239, December.
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    More about this item

    JEL classification:

    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics

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