Learned Hand

Learned Hand (January 27, 1872 – August 18, 1961^[1]) — born Billings Learned Hand — was a famed American judge. Hand served for many years as Chief Judge and intellectual leader of the United States Court of Appeals for the Second Circuit, headquartered in Manhattan, after prior service on the United States District Court for the Southern District of New York. He is remembered in connection with early cases construing the free speech clause of the First Amendment and as a pioneer in applying economic reasoning to American tort law. Hand is considered by many to be one of the most influential American judges never to have served on the Supreme Court of the United States.

Biography

Born in Albany, New York, Learned Hand attended The Albany Academy before training in philosophy at Harvard College, studying under William James, Josiah Royce and George Santayana. He graduated Phi Beta Kappa and later obtained a degree from Harvard Law School as well. Hand's favorite professor at Harvard Law was James Bradley Thayer, who taught Hand Evidence during his second year at law school, and Constitutional Law in his third year.^[2] Hand remained a fan of Thayer all his life and Thayer was a huge influence on Hand's jurisprudence.

Hand started practicing law in Albany, and taught at Albany Law School. By 1898, he had established a relationship with Theodore Roosevelt (who had recently returned from the Battle of San Juan Hill and who would be elected Governor of New York in 1899).

Hand moved to New York City in 1902, following his marriage to Frances Fincke, a graduate of Bryn Mawr College. In New York City, Hand enjoyed friendships with many of his former classmates from Harvard who were now prominent Progressives, including Norman Hapgood, Felix Frankfurter, Herbert Croly, and Walter Lippmann.^[3] He later spent his free time at his vacation house in Cornish, New Hampshire, where he enjoyed the close friendship of novelist J. D. Salinger.^[4]

Hand was appointed to the United States District Court for the Southern District of New York by President William Howard Taft. Hand served on the District Court from 1909 to 1924. His best known opinion on that court was Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917). Hand participated in Herbert Croly and Walter Lippman's founding of The New Republic in 1913, and would often write for the magazine in the years to come, sometimes anonymously.^[5] He split bitterly with Croly over The New Republic's decision to oppose the Treaty of Versailles and in the 1920s largely withdrew from political activism. In 1922, Hand was one of only a handful of federal judges invited to participate in the founding of the American Law Institute.

In 1924, President Calvin Coolidge elevated Hand to an appellate position on the United States Court of Appeals for the Second Circuit, where Hand served for the rest of his life. Hand's promotion was urged upon Coolidge by Taft, who by then was serving as Chief Justice of the United States, even though Taft had previously opposed the suggestion that Hand be elevated to the Supreme Court. Hand served as the Chief Judge of the Second Circuit from 1939, when he succeeded Martin Manton (the position was known as "Senior Circuit Judge" until 1948). Hand's most famous opinion from this period is United States v. Carroll Towing Co. (1947), a Tort case in which he introduced the famous "Hand Formula" (aka "the BPL Formula"). In 1951, Hand assumed senior status.

Hand's cousin, Augustus Noble Hand, was also a judge and also served on both the Southern District of New York and later Second Circuit courts. For many years, Second Circuit panels frequently included both Hands.

In 1944, Judge Hand delivered an address at a patriotic rally in New York City's Central Park. The address, entitled "The Spirit of Liberty", is one of Hand's most famous utterances. In it, he famously described the spirit of liberty as "the spirit which is not too sure that it is right." He also made the pragmatic observation that "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."

In 1958, Hand delivered the Oliver Wendell Holmes, Jr. Lectures at Harvard Law School. Hand had been an opponent of judicial activism since his early years as a Progressive opponent of Lochner v. New York. These 1958 lectures proved to be the last major critique of judicial activism from a Progressive, and involved a lengthy diatribe against the Warren Court's 1954 decision in Brown v. Board of Education. The lectures were published as The Bill of Rights and became a national bestseller.

Influence

Hand's judicial opinions are frequently considered classic formative statements of American contract and tort law. One of his most famous tools, commonly referred to as the calculus of negligence, first appeared in United States v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947). The case was concerned with civil tort liability in a case alleging damage after a boat-owner's failure to adequately secure his vessel at harbor.

The calculus requires that financial liability should be imposed for a negligent tort only if the burden of preventing the injury does not exceed the magnitude of the injury multiplied by its likelihood of occurring. The rule, also sometimes referred to as the "Hand Test," is most notable for its economic approach to a legal rule; an approach that is the foundation of the law and economics school of legal thought. The Hand Formula finds negligence when the actor's burden (B) is less than the probability (p) of harm, multiplied by the degree of loss (L).

B < p × L

Like many others in the law and economics school, most notably Judge Richard Posner, Hand was also influenced by philosophical pragmatism.

One of the most famous quotes that Judge Learned Hand is known for is: "There is nothing sinister in so arranging one's affairs as to keep taxes as low as possible."

In another famous quote regarding the U.S. income tax law, Judge Hand wrote:

"Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes[. . . . ]" Gregory v. Helvering, 69 F.2d 809, 810-11 (2d Cir. 1934). The irony in the Gregory case was that after giving the reader a very taxpayer friendly quote, Judge Hand disregards the taxpayer's convoluted transactions taken to avoid the tax despite following the correct form required by statute, thus giving impetus to the substance over form doctrine.

Archibald Cox, the special prosecutor in the Watergate Scandal, and philosopher of law Ronald Dworkin each served as law clerks for Hand.

References

Notes

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