Emad H Atiq, ‘The Disaggregated Hand Formula’, 114 California Law Review (forthcoming 2026), available at SSRN (1 March 2025). The Learned Hand test is both famous and infamous. The main source of its fame is the law and economics movement, which drew attention to the test in the 1970s. According to Richard Posner and other scholars in that movement, the test is both a descriptively accurate account of how legal fact-finders understand negligence, and a normatively attractive account of why tort law imposes liability for harms caused by negligence – namely, to promote efficiency and minimize the aggregate costs of precautions and the harms that precautions could avoid. But the Hand test is also infamous … (more)
[Kenneth W Simons, JOTWELL, 6 October 2025]
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