Talk:Hand formula

This description while accurate enough is arcane and likely to leave the reader under the impression that negligence standards involve calculations of risk/benefit on the fly.

In real life, most negligence claims arise out of varying degrees, not of calculation, but of thoughtlessness; and the judge will instruct the jury that the plaintiff prevails if he/she proved that the defendant failed to use "ordinary care" under the circumstances. That duty, in turn, is usually described as "that degree of care which an ordinarily careful person would have used under the same or similar circumstances." Not a terribly precise formula, to be sure, but one that entrusts juries to do what they do best: apply their common sense to a unique situation.

A further problem with the description given is that it hints that the common law of the US is as pronounced by Justice Hand. The Supreme Court long ago abandoned deciding the common law of the states and left that up to the highest courts of the several states. Common law negligence today is defined in the states by state courts. It also has many corrollaries not mentioned here, such as that the violation of a statutory duty of care is at least prima facie evidence of negligence [as with speed limits] or [as with gun safety laws] is negligence per se, i.e., negligence as a matter of law, and further proof is unnecessary.

This article appears to be meant specifically to discuss Learned Hand's calculus of negligence. A more general discussion of negligence can be found elsewhere (Negligence).

—Preceding unsigned comment added by 128.239.160.126 (talk) 01:30, 7 December 2008 (UTC)[reply]

Calculus of negligence, is this where you drink and derive? Meton magis (talk) —Preceding undated comment added 01:05, 26 January 2010 (UTC).[reply]