The Hand Formula in the Draft Restatement Third of Torts: Encompassing Fairness as Well as Efficiency Values

The draft Restatement Third of Torts\u27 definition of negligence employs a version of the Learned Hand formula. According to the chief Reporter, the Hand formula can accommodate both economic and fairness accounts of negligence law. Is he correct? I argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. The draft Restatement is also correct in largely rejecting a reasonable person criterion of negligence. At the same time, however, the current draft is deficient in some respects. It does not adequately allay the fears of those who worry that the Hand formula will inevitably receive a narrow economic interpretation. It should more clearly underscore that negligence is a species of fault. And it should clarify the unavoidable value judgments inherent in a negligence determination, value judgments that are no less necessary or desirable when the Hand formula is employed to make that determination. At the end of this paper, I suggest some specific Restatement language that might remedy these deficiencies. With respect to the evaluative dimension of negligence, the paper examines four different approaches: willingness-to-pay, utilitarian preference-satisfaction, social welfare maximization, and nonutilitarian (or not exclusively utilitarian). The last two are the most plausible and most consistent with actual doctrine. A determination that an actor is negligent reflects a value judgment at two levels. It expresses the judgment that the actor should have done something different, in light of the foreseeable risks of his conduct. It also presupposes value judgments about the relevant marginal advantages and disadvantages of taking such a precaution. The task of conscientiously identifying and clarifying the appropriate value judgments is not easy, but it is unavoidable if negligence is to remain a justifiable ground of tort liability