Learned Hand

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Learned Hand (1872-1961) was a prominent judge of the Court of Appeals for the Second Circuit (nominated by President Calvin Coolidge), after serving as a federal district judge in New York (at the nomination of President William Howard Taft). Judge Hand is known as much for his eloquent prose as for his unusual name, and his opinions are widely taught in law schools. He was an intellectual leader in the judiciary.

He was a proponent of balancing tests in the, and used them often. For example, in the contest of absolute immunity for a prosecutor against lawsuits for malicious prosecution, he wrote:

As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

Gregoire v. Biddle, 177 F. 2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950).

Judge Hand was the first to apply economic concepts to legal analysis. His "Hand test" for negligence imposes liability only if the burden of preventing harm is less than the probability of the harm times its magnitude:[1]

the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.

That statement was decades before the law and economics movement picked up on the same concept in the 1960s.

In 1944, Judge Hand delivered a speech to thousands of new citizens in Central Park in Manhattan, on "I am an American Day." His speech became an instant sensation for its stirring insights:[2]

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

Judge Hand was both a member of the establishment and an iconoclast who urged against conformity. One of his famous quotes is the following:[3]

Our dangers, as it seems to me, are not from the outrageous but from the conforming; not from those who rarely and under the lurid glare of obloquy upset our moral complaisance, or shock us with unaccustomed conduct, but from those, the mass of us, who take their virtues and their tastes, like their shirts and their furniture, from the limited patterns which the market offers.

Though Judge Hand served more than 50 years on the federal bench and is considered one of the very finest jurists in American history,[4] he was never nominated to serve on the U.S. Supreme Court.

In over a half-century of deciding cases, Judge Hand declared only only two laws to be unconstitutional.

Further reading

  • Griffith, Kathryn. Judge Learned Hand and the Role of the Federal Judiciary. (1973). 251 pp.
  • Gunther, Gerald. Learned Hand: The Man and the Judge (1994), the standard scholarly biographt


  1. United States v. Carroll Towing Co., Inc., 159 F.2d 169 (2d Cir. 1947). [1]
  2. http://www.nacdl.org/public.nsf/ENews/2002e67?opendocument
  3. http://www.bartleby.com/73/258.html
  4. http://www.npr.org/templates/story/story.php?storyId=1064953