Research On The Hand Formula

The traditional Common Law System takes the reasonable personstandard as the usual approach for definition of＂negligence＂. However,in the modern US law, the concept of＂ negligence＂ has beenapproached through the cost-benefit analysis which is represented bythe＂Hand formula＂, the contents of which can be summarized asfollows: negligence means the failure to avoid accidents when the cost ofprecaution is less than the benefit, which can be stated as “B <PL” in amathematical form. This approach is quite different from the common lawtradition and is of revolutionary importance: Judge Hand declared thescientific form of negligence by the Hand formula; Posner modified Handformula to explain the economic natures of the negligence. Despite ofcriticisms under both ethics and technique dimensions, Hand formula isstill of great significance not only in philosophy but also in practice. In theChinese legal practice of the negligence cases, the “probability offoreseeing the accident” has been applied as the single standard to definenegligence for a long time. This improper conduct suggests the necessityof introducing Hand Formula and more emphasis on the＂ probability ofavoiding the accident＂ to diversify and reform the way of legal thinking.On the issue of how to apply this Hand Formula, taking into account thestability of the existing civil law system, the scope of application of theHand Formula should be limited to indirect negligence and nonfeasancenegligence cases, in which the Hand Formula shall be merely interpretedas one of the standards to define the Rechtswidrigkeit.The structure of this paper, In addition to the introduction and conclusion, could be divided into five chapters：The first chapter is called “origin”, which is aiming at studying theethical and systematic origin of negligence in common law system, sortingout the development history from fault to negligence, from subjectivenegligence to the objective negligence, and summing up the negligenceelements and criteria in Common Law.The second Chapter is called “Innovation”, which explains in detailthe process of Hand Formula’s birth by doing comprehensive study on the11precedents which reflects the Hand Formula theory; and to traceintellectual origins of Hand Formula, to review the knowledge inheritancefrom Mill, Holmes, Terry, Seaway, Bohlen,“Restatement of tort law” toJudge Hand; and the give a brief summary of the fundamentalism of Handformula in the end.The third Chapter is Called “improvement”, which tries tosystematically explain the economic-analysis interpretation andmodification of Hand formula represented by Posner’s theory, follow thetrack from the marginal improvement of Hand factor, the continuousapplication of Hand formula to the economic interpretation of thetraditional rules and restore the way how the scholars apply the theory ofeconomic analysis of law to interpret Hand Formula.The fourth Chapter is Called “contention”, which firstly try to catch arough glimpse of how the Hand Formula works in modern American tortlaw system by discussion on “Restatement of Torts (Third)”, the HandFormula jury instruction and the cost-benefit definition of product designdefect liability; secondly try to generalize the criticisms under both ethicaland technology dimensions; thirdly try to review of the misunderstandingcriticisms from Fengjue and Linli.The fifth Chapter is Called “opinions”, which has two purposes. Thefirst is to restate the substance of the Hand Formula--it is a wholly alternative to the traditional liability system of negligence, itsphilosophical foundation is based on the virtue ethics and the wealthmaximization theories, its premise of application should be limited to thecase involved undefined rights and interest and its ultimate purpose is topromote the consistent optimal decision by singles and concequently resultin the reduction of the social cost of accidents. The second purpose is toestimate the feasibility of introduction of Hand Formula into Chinese lawsystem, especially on the issues of implant position, the scope ofapplication and expected function of it, through detailed research on thenormative structures of Chinese tort rules, academic interpretation, and thepractical cases.