文章基本信息

标题：The Hand Rule And United States v. Carroll Towing Co. Reconsidered
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作者：Allan M. Feldman Jeonghyun Kim
期刊名称：Economics Working Papers / Brown University
出版年度：2002
卷号：2002
出版社：Brown University
摘要：Judge Learned Hand’s opinion in United States v. Carroll Towing Co. (1947) is canonized in the law and economics literature as the first use of cost-benefit analysis for determining negligence and assigning liability. This paper revisits the original case in which the famous Hand formula was born, and examines whether Judge Hand’s ruling in that case would truly provide correct incentives for efficient precaution. We show that the original rule specified by Judge Hand is different from th e usual application of the Hand formula by modern law-and-economics theorists in the standard continuous care model. Through a game theoretic analysis of the case, we show that Judge Hand’s negligence rule from United States v. Carroll Towing Co. may in f act produce games with inefficient equilibria. Such a possibility of inefficiency does not depend on the specific liability rule that governed the original case. It is even more ironic that there exist cases where the equilibrium is efficient, but the equilibrium requires that the victim not have a “bargee” on board, which flies in the face of Judge Hand’s opinion.
关键词：Learned Hand rule, negligence, liability rules, negligence-based rules.