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 1970’s. 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. The test provides that an actor is negligent just in case the burden of taking a precaution (B) is less than the probability of the harm that the precaution would have avoided multiplied by the severity of that harm (PxL). Critics protest that the test is not an accurate account of how the law defines negligence. And more fundamentally, they object that treating this formula as the test of negligence is normatively objectionable, indeed abhorrent. If the burden is only slightly more than the expected harm (the harm’s severity discounted by its probability), the formula declares that the actor may freely impose the risk without fear of tort liability if the risk generates harms–even very serious harms–to others.
Professor Emad Atiq, in an illuminating and highly original contribution, suggests that there is a middle way. In The Disaggregated Hand Formula, he argues that one can endorse balancing the burden of precautions against the burden of suffering harm and yet reject efficiency as the only goal of tort liability. Rather, in his view, the Hand test can also embrace principles of distributive fairness and equality. He claims that this reconceived understanding renders the test more accurate as a description of tort doctrine and leading cases, and also more normatively attractive, in multiparty cases involving aggregation. Atiq’s account is a very promising addition to the literature on the meaning of negligence and the principles that justify negligence liability.
Atiq sets up his argument nicely. Why, in the well-known Ford Pinto1 and McDonald coffee2 cases, does cost-benefit analysis that militated against a negligence finding seem problematic, whereas in other, apparently similar cases, such as the failure of a manufacturer to childproof its lighters, it seems acceptable? If we interpret the Hand formula in the standard way, as simply comparing, in a utilitarian manner, the aggregate burdens of taking a precaution against the aggregate expected harms that the precaution would avoid, we cannot explain this pattern of results.
Atiq offers an alternative explanation. Principles of impartiality and equality require us to disaggregate the Hand formula in the following way: compare the highest individual burden that would be suffered by someone if the precaution is taken, against the highest individual burden (in the form of expected harm) that would be suffered by someone if the precaution is not taken. (This approach draws in part on the contractarian approach to aggregation espoused by T.M. Scanlon and other philosophers.)
How would this interpretation play out? If a corporation could spend $1001 to avoid a 10% risk of a $10,000 injury to a single resident’s property, with the burden of that spending equally spread among 100 shareholders, the utilitarian version of the Hand formula would say that the precaution need not be taken, because the aggregate B slightly exceeds the aggregate PxL. But Atiq’s version would require the precaution, because the greatest burden suffered by an individual shareholder ($10.01) is far less than the expected loss suffered by the resident ($1,000). “The lone resident’s morally weighty claim in favor of the precaution should prevail even though the shareholders have a greater aggregate claim against the precautions.” (P. 128.) Conversely, suppose that a business owner could take a precaution against the very small risk that the sharp envelopes she sells will cause minor papercuts to many users, and suppose that the owner is unable to pass along the cost of the precaution to consumers. Then, even if the utilitarian calculus would determine that the business owner is negligent because the costs of the precaution are less than the sum of the expected losses, Atiq’s approach would not treat the owner as negligent, because her burden is considerably greater than the individual loss suffered by any user. (P. 131.)
Atiq applies his analysis to the Ford Pinto case, which (to simplify) arose when Ford chose not to adopt an $11-per-car safety feature that could have avoided serious burn injuries (valued at $67,000 each) and deaths (valued at $200,000 each) because the aggregate costs of adopting the feature for all vehicles ($137 million) outweighed the aggregate benefits of avoiding those consequences ($49.5 million). Faced with a government cost-benefit study reflecting these figures, the jury not only found Ford negligent but imposed a $125 million punitive damage award.
But according to Atiq, the compensatory and punitive damages awarded against Ford for its product design do not reflect a complete rejection of the Hand test. Instead, they evince the use of the disaggregated version of the test. Atiq points out that even if the $200,000 value of a life was a proper average figure to employ in 1970, many potential victims (such as children) had much higher life values than this figure. (Pp. 152-153.) And if that higher expected value for some potential victims is increased to $1,000,000, the calculation would, he correctly notes, come out differently: B would then be less than rather than greater than P x L. Similarly, he argues that the $11-per-car burden is likely overstated, because this burden would probably be shared by consumers and shareholders. Atiq offers a very similar analysis of the McDonald’s hot coffee case.3
Atiq is persuasive in suggesting that the Hand formula need not be understood in utilitarian terms and can accommodate distributive justice and egalitarian principles.4 The article is an impressive blend of the abstract and the concrete, developing a theoretically sophisticated analysis that also has quite specific implications for tort doctrine and case outcomes. Atiq formalizes his arguments elegantly, suggesting a way to measure the idea of rough equality of burdens (P. 138) and also offering an intriguing proposal to combine utilitarian and egalitarian arguments by specifying their relative weights. (P 143.) At the same time, he formulates a jury instruction that would implement his suggestion in routine negligence cases.5
One principal concern about Atiq’s argument is its potentially far-reaching implications. Any widely distributed product or widely conducted activity will affect individuals who vary enormously along a number of dimensions that seem highly relevant under the disaggregated version of the Hand formula. For example, people differ greatly in their vulnerability to risk. So long as a single user or potential victim of a product that is used by millions is extraordinarily vulnerable to risk, that person’s burden could require the actor to take very burdensome precautions to avoid that risk. (Suppose a tiny percentage of car passengers have a rare genetic disorder such that sudden braking will cause them to die.)
People also differ greatly in what they value and how much they value it (and thus what burden they will suffer if they must take a precaution or if they are harmed because a precaution was not taken): Hotter coffee or greater safety? Financial wealth or love and friendship? Job security or hedonistic pleasure?
Moreover, the “highest burden to any individual” criterion seems to require actors to adjust their conduct to accommodate even extremely idiosyncratic and rare individual preferences. Perhaps some McDonald’s customers strongly prefer that their coffee have zero risk of spilling and be served in a completely spill-proof container. Perhaps some very healthy individuals strongly prefer that ambulances never speed because they are quite unlikely to need an ambulance.
Another concern is that the argument tends to focus on costs of precautions in isolation without considering their cumulative effect on the increased cost (or modified nature) of the product or activity. For example, Atiq emphasizes that in litigation about whether the lack of childproofing of a utility lighter was negligent, the burden of only 1-5 cents increased cost to consumers from that precaution is “negligible.” (P. 159.) But for a more complex product, such as an automobile, it is important to consider the cumulative costs that would be incurred if numerous small design changes were required. A significantly more pro-plaintiff test of design defect could result in the product becoming much less affordable, a result that raises a distinctive issue of distributive justice.
Perhaps these concerns can be addressed by incorporating such distributive justice issues into the model, or by adding doctrinal qualifications to the disaggregated formula, such as a requirement that the type of burden that plaintiff asserts is foreseeable or normal or not unreasonable. I hope that Professor Atiq explores these issues in more detail in future writing.6
This creative and rigorous article makes a strong case that the Hand formula is capable of multiple interpretations, accommodating distributive justice as well as utilitarian principles.
- Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757 (1981).
- Liebeck v. McDonald’s Rests., No. CV-93-02419, 1995 WL 360309 (D.N.M. Aug. 18, 1994).
- Atiq reviews McDonald’s argument that many or most take-out consumers prefer very hot coffee because they drive a long distance and want the coffee to remain hot. He replies that the law should instead focus on short-distance drivers “who consume the coffee immediately and are at greater risk of burdens… [I]t seems quite plausible that the highest individual-level expected loss to the short-distance driver must have been significantly greater than the highest individual-level burden from slightly cooler coffee.” (P. 157.)
- For some similar arguments, see Kenneth W. Simons, Improving Nonconsequentialist Accounts of Negligence and Risky Tradeoffs, in A Research Agenda for Torts (E. Bublick & J. Goldberg eds., forthcoming 2025), available at SSRN (Sept. 26, 2024); Kenneth W. Simmons, Tort Negligence, Cost-Benefit Analysis, and Tradeoffs: A Closer Look at the Controversy, 41 Loyola L. Rev. 1171 (2008).
- This is the proposed instruction: If the highest expected loss suffered by any single person due to the risk was substantially greater than the highest burden that would have been borne by any single individual if the defendant had taken care to avoid the risk, that is a factor that counts in favor of the defendant’s negligence. If the reverse is true, it counts against the defendant’s negligence. (Pp. 140-141.)
- Another question about the article is whether impartiality and equality are different values and if so, how they differ for purposes of the disaggregation thesis. The article largely focuses on impartiality, in the sense of treating others’ interests as if they mattered less than one’s own. (P. 122.)
Thank you, Ken, for your generous and thoughtful review. I shared it with several colleagues, who agreed with some of your observations.
Your point about individuals with extreme (objective) vulnerabilities is especially well-taken. There is, however, some room to mitigate oversensitivity to individual cases. As you note, in Section II.B, I suggest that the “E” parameter, which measures rough equality in pairwise comparisons, can be treated as a function, in part, of aggregate welfare loss or gain. The idea is that we are less willing to cater to individual needs when the aggregate loss from doing so is great. But the sensitivity cannot be too high, or else the whole point of disaggregated comparisons is lost. The model is meant to be flexible enough to accommodate different moral intuitions. The main goal is to capture the factors that clearly matter, rather than to fix their relative weights once and for all.
Your interpretation of my view is, on the whole, exactly right. There may, however, be a small misunderstanding behind your second comment. You note that individuals with idiosyncratic preferences might be over-privileged in the analysis. But the model is not meant to be subjective in its assessment of individual burdens. The pairwise comparisons can be conducted with as objective a measure of individual burden as one likes—for example, in terms of quantifiable costs incurred. The same goes for individual differences in values or priorities. You’re right that doing justice in light of such differences among people is difficult, but that is everyone’s problem. For instance, the model treats everyone as equally risk-averse — an extreme idealization — but one that seems unavoidable if we are to make objective assessments at all.
Your point about accumulating costs in the design of complex goods is also well-taken, especially since a single-issue lawsuit focused on one set of plaintiffs is unlikely to reflect on lawsuits down the line. One limiting principle already built into the model is that the costs and benefits of a design change must be knowable at the outset. As I note early on, the analysis concerns known impositions of risk. But you’re right that additional limiting principles or doctrines will likely be needed. Perhaps, given time constraints, defendants should only be required to deliver a careful, morally sound verdict based on disaggregated Hand on the most glaring and feasible design changes—those visible to the eye of ordinary (corporate?) vigilance.
I look forward to thinking more about these issues. I continue to find the Hand formula remarkably useful for structuring moral reflection. One of my aims in the paper was precisely to make its subtle flexibility and complexity more vivid.