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‘The Hand-Formula Debate: A Behavioral Analysis’ – Alon Harel (The Hebrew University of Jerusalem)

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NICEP is delighted to be inviting Alon Harel (The Hebrew University of Jerusalem) to deliver a talk entitled ‘The Hand-Formula Debate: A Behavioral Analysis’ for the Autumn schedule of its seminar series.


Tort-law theorists have long debated whether courts use the Hand formula in negligence disputes. Both protagonists in the debate identify cases that support their view, implying that tort law fails to either consistently accept or reject the formula. This Article, introducing the loss-gain liability hypothesis, offers an account of the significance of efficiency considerations in the adjudication of negligence disputes. Using a series of experiments, it shows that whether adjudicators apply the Hand formula depends on the nature of the injurers’ interest in engaging in the harmful activity. Specifically, when injurers’ activity was motivated by a desire to increase their gain, liability is often imposed even if injurers can establish that their activity was socially efficient, namely, that their benefit outweighed victims’ expected harm. By contrast, when injurers engaged in an activity to protect themselves from a loss, liability is more likely to be denied when injurers prove that their activity was socially efficient. The differential treatment of gains and losses can thus help reconcile the disagreements concerning the underlying structure of tort law and, in particular, its conformity with the Hand formula. While the focus of the Article is descriptive, it examines several normative implications of the experimental findings.

Date(s) - 04 Dec 2019
1:00 pm - 2:00 pm

C10, Teaching & Learning Building