LEARNED HAND

'Billings Learned Hand' (January 27, 1872 – August 18, 1961) — usually called simply 'Learned Hand' — was a famed American judge and an avid supporter of free speech, though he is most remembered for applying economic reasoning to American tort law. Hand is generally considered to be one of the most influential American judges never to have served on the Supreme Court of the United States.

Contents

Biography

Influence

Additional quotations

References

Notes

Biography

Born in Albany, New York, he 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 started practicing law in Albany, and taught at Albany Law School, before moving on to New York City. 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.
Hand served on the United States District Court for the Southern District of New York from 1909 to 1924 (see ''Masses Publishing Co. v. Patten'', 244 F. 535 (S.D.N.Y. 1917)), and on the United States Court of Appeals for the Second Circuit from 1924 until 1951. Hand served as the Chief Judge (previously known as the "Senior Circuit Judge") of the Second Circuit from 1939, when he succeeded Martin Manton, until 1951.
Hand's cousin, Augustus Noble Hand, was also a judge and also served on both the Southern District and the Second Circuit courts substantially during Learned's tenure at each.

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.
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."
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[. . . . ]" ''Helvering v. Gregory'', 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.

Additional quotations

★ "Right knows no boundaries and justice no frontiers; the brotherhood of man is not a domestic institution."

★ "Heretics have been hated from the beginning of recorded time; they have been ostracized, exiled, tortured, maimed, and butchered; but it has generally proved impossible to smother them; and when it has not, the society that has succeeded has always declined."

★ "In the end it is worse to suppress dissent than to run the risk of heresy."

★ "How long shall we blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some change."

★ "There is no surer way to misread any document than to read it literally. ... As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final."

★ "If the prosecution of crime is to be conducted with so little regard for that protection which centuries of English law have given to the individual, we are indeed at the dawn of a new era; and much that we have deemed vital to our liberties, is a delusion."

★ "It is of course true that any kind of judicial legislation is objectionable on the score of the limited interests which a Court can represent, yet there are wrongs which in fact legislatures cannot be brought to take an interest in, at least not until the Courts have acted."

★ "Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of the law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government."

★ "It is still in the lap of the gods whether a society can succeed which is based on 'civil liberties and human rights' conceived as I have tried to describe them; but of one thing at least we may be sure: the alternatives that have so far appeared have been immeasurably worse."

★ "A self-made man may prefer a self-made name."

★ "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

★ "The hand that rules the press, the radio, the screen and the far-spread magazine, rules the country."

References

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★ Marcia Nelson, ''The Remarkable Hands: An Affectionate Portrait'' (Federal Bar Foundation 1983)

★ Marvin Schick, ''Learned Hand's Court'' (Johns Hopkins 1970)

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Notes

★ Some online sources report Hand's date of death as August 14. This article uses August 18, which is the date given in the Federal Judiciary Center profile of Judge Hand as well as in many other sources.

★ In an address delivered on May 20, 1961, shortly before his death

★ From a lecture entitled "A Fanfare for Prometheus" delivered on January 29, 1955

★ From the Oliver Wendell Holmes lecture delivered at Harvard in 1958

★ From the decision in ''Parke, Davis & Co. v. H. K. Mulford Co., 1911''

★ From the decision in ''Guiseppi v. Walling, 144 F.2d 608(C.C.A.2, Jun 27, 1944)''

★ From the decision in ''United States v. Di Re, 1947'', reversing a lower court opinion about evidence illegally obtained

★ In a letter to Louis D. Brandeis, dated January 22, 1919

★ From the decision in ''Masses Publishing Co. v. Patten, 1917''

★ From a lecture entitled "A Fanfare for Prometheus" delivered on January 29, 1955

★ Commenting on Samuel Goldfish changing his name to Samuel Goldwyn, as quoted in 'Lion's Share' by Bosley Crowther, 1957

★ Hand, The Bill of Rights 73 (1958).

★ Copps, supra note 44.