Sleight of hand.

• Author: Zipursky, Benjamin C.
• Position: Concept of negligence

INTRODUCTION

Learned Hand was a titan of American law: incisive in his intelligence, capacious in his knowledge, decidedly pragmatic in his judgment, but intellectually sophisticated through and through. (1) Although unafraid of touching broader themes in his decisions and his writings, he was, at the end of the day, most comfortable as a judge. When pressed toward moral abstraction, Learned Hand dug in his heels as the hard-headed skeptic. Unsurprisingly, Learned Hand's opinions have cast a long intellectual shadow in a fundamental subject like tort law. Indeed, the "Hand Formula" of United States v. Carroll Towing Co. (2) is perhaps the most central idea of many first-year torts classes today. (3) Students learn that the standard of care in negligence law is ideally--if somewhat abstractly--analyzed in terms of a formula comparing the costs of taking precautions, with the product of the likelihood of injury without those precautions, and the magnitude of such injury. (4)

There is more than a little irony, however, in the superstar status of the Hand Formula in torts. To begin with, Carroll Towing is not a negligence case at all; indeed, it is not even a tort case, but an admiralty case. (5) Beyond that, the allegedly unreasonable conduct in that case involved a plaintiffs carelessness, not a defendant's carelessness; (6) even the very general idea of a wrongdoer being held responsible to those it has injured is not implicated in Carroll Towing, because the case is about a plaintiffs fault. (7) And in Carroll Towing and the relatively few other decisions in which Hand commented on what is now termed the "Hand Formula," he took great pains to caution readers against elevating the idea to a magical formula and to warn them against the possibility of anything approaching precise application. (8) Add to this that Hand was quite self-consciously a federal appellate judge operating largely in a state with its own well developed tort law in a post-Erie era, (9) and one can easily see that Hand would not have claimed--and did not claim--for his algebraic formula anything like the centrality it is now claimed to have.

How could the Hand Formula have become elevated to the high status it now enjoys in tort theory? The obvious answer is "Richard Posner." The leading torts professor in the country for decades, and now the leading writer of torts opinions on the bench, Posner launched the most illustrious phase of his remarkable academic career by seizing upon the Hand Formula as the key to negligence law. And he has never let go. Posner's most famous article, A Theory of Negligence, used Hand's decision in Carroll Towing as the starting point for what he touted to be a clear-sighted and correct analysis of negligence law. (10) Moreover, because a twinkling of algebra and efficiency lurks in Carroll Towing, Professor Posner used the case to energize his entire economic theory of tort law, which, in my view, remains the most celebrated within the legal academy.

Indeed, the Hand Formula as an interpretation of the standard of care in negligence law, in some ways, surpasses the celebrity of Posner's particular economic interpretation of it. Law professors and casebook authors who strive to take a pluralistic or middle-of-the-road approach toward tort theory are frequently happier to teach the Hand Formula as the core of negligence than they are to embrace any highly monetized form of it. (11) The Third Restatement of Torts: Liability for Physical Harm expressly embraces a version of the Hand Formula, but stops short of a fully economic interpretation of it. (12) Although Posner's selection of efficiency over utility remains highly controversial, he appears to have won over a large audience with his broader claim that the standard of care in negligence law should be understood in terms of the Hand Formula and that, moreover, the deterrence-based account of negligence law that flows from such an analysis provides a systematic account of the entirety of negligence doctrine. Although the Hand Formula analysis of negligence certainly has seen its share of detractors, it is an analytical doctrine that has tended to cut across political and ideological lines. (13) As the work of Heidi Hurd, Michael Moore, and numerous philosophers of tort law illustrates, the Hand Formula has cut across divisions within the legal academy, too. (14)

The allure of the Hand Formula is, I am afraid, all smoke and mirrors; it is Posner's sleight of Hand. To be sure, there are many contexts in which it is intelligent and reasonable, in thinking about which precautions to take, to consider precaution costs, probabilities of injuries, and magnitude of injuries. It is also true, all else being equal, that the reasons against taking the precaution tend to increase with its cost, whereas the reasons in favor of the precaution tend to increase with the reduction of injury likelihood or severity that the precaution would effect. Almost no one contests that. But this is a far cry from showing that the concept of negligence or due care in American negligence law means failing to take cost-justified precautions. There is plenty of content to the concept of negligence in our common law of negligence, and for the most part, it does not relate to cost-justified precautions. Over the past sixteen years, the weakness of the Hand Formula's account of the standard of care has been displayed by Patrick Kelley, (15) Stephen Gilles, (16) Gregory Keating, (17) Richard Wright, (18) Michael Green, (19) Heidi Feldman, (20) and numerous others. (21)

In this Article, I shall try to push this case further, contending that the claim that the Hand Formula captures the meaning of negligence is belied by several fundamental features of negligence law. Beyond showing that the Hand Formula is, as Richard Wright has called it, a "myth," (22) I shall begin to sketch an affirmative theory of the concept of ordinary care in American negligence law.

Needless to say, the sleight of hand I am attributing to Posner is not duplicitous or dishonest, because the magician himself was tricked. I have no doubt that Posner believed that reasonable care must be understood in terms of the Hand Formula. The problem is that Posner's contempt for morally tinged accounts of legal language is so profound that he cannot see the moral language as a real option. (23) This is presumably what Posner came to realize when he began talking about "overcoming law." (24) He began to recognize, more clearly, that he is in a bind, wondering whether there is really law for him to see, because his reductive accounts of what the law says are implausible, and he refuses to countenance those versions of the law that take its surface language seriously. Posner's radical philosophical skepticism about the normative language of the law blinds him to what the law says. He is, to this extent, taken in by his own sleight of hand. If I am right that Posner's philosophical skepticism about moral language and robust concepts in the law is indefensible, a position that I have argued at length elsewhere, (25) then neither he nor others should be taken in. Breach in negligence law is to be judged by the ordinary care standard, and no evidence exists that either our system or the jurors who make these decisions are led to, or do, understand this standard in terms of the Hand Formula.

One more irony. Looking back at A Theory of Negligence, Posner apparently was attacking an academic program that made him deeply suspicious. Posner saw in what he called the "orthodox view of the negligence concept" a fashionable if deeply rooted trend in the legal academy that was getting in the way of clear thinking about negligence law. (26) He sought to look at the body of actual tort cases to undermine this way of thinking. (27) He particularly thought taking the concept of "negligence" seriously critical, because the idea of holding defendants to a standard of conduct was, in his view, plainly essential to what was happening in American tort law, notwithstanding an academic attitude of dismissiveness toward it. (28) And he identified as a cause of the problem legal scholars' concerns that the language of negligence was too "moralistic." (29) Posner thought it critical for law professors to get over the embarrassment, if you will, of the moralizing language of negligence law, and to realize that the language is not just verbiage or judgmentalism; it was really doing work in the law. Of course, that is just my point here, and in what follows.

Part I begins with the two pieces of writing I have already mentioned: Hand's famous opinion in Carroll Towing, and Posner's seminal article, A Theory of Negligence. The central point of Part I is to contrast the difference between the relatively modest role the Hand Formula plays in Carroll Towing, and the tremendous analytical and theoretical significance attributed to it by Posner. More particularly, Part II shows that Posner relies on the Hand Formula as an analysis of the meaning of the standard of care in negligence law.

Part II.A offers the central critical argument of the Article: the Hand Formula simply fails to capture an abundance of evidence law in the concept of negligence. The evidence consists in the jury instructions given across the country, namely, the commonality of words and concepts in those jury instructions, and their tendency to refer to particular, overlapping concepts--that of ordinary care and reasonable prudence or carefulness--that do not bear any particular conceptual connection to the Hand Formula; (30) the existence of a wide and important range of cases that pertain to inadvertent negligence, in a manner that makes little room for the applicability of the Hand Formula; (31) the existence of a spectrum of care levels in negligence law that are of a similar kind, but different stringency, than ordinary care, but make little sense as contrasted with the Hand Formula...