摘要：Judge Learned Hand’s opinion in United States v. Carroll Towing Co. (1947) is
canonized in the law and economics literature as the first use of cost-benefit analysis for
determining negligence and assigning liability. This paper revisits the original case in
which the famous Hand formula was born, and examines whether Judge Hand’s ruling in
that case would truly provide correct incentives for efficient precaution. We show that
the original rule specified by Judge Hand is different from th e usual application of the
Hand formula by modern law-and-economics theorists in the standard continuous care
model. Through a game theoretic analysis of the case, we show that Judge Hand’s
negligence rule from United States v. Carroll Towing Co. may in f act produce games
with inefficient equilibria. Such a possibility of inefficiency does not depend on the
specific liability rule that governed the original case. It is even more ironic that there
exist cases where the equilibrium is efficient, but the equilibrium requires that the victim
not have a “bargee” on board, which flies in the face of Judge Hand’s opinion.
关键词：Learned Hand rule, negligence, liability rules, negligence-based rules.
