Incremental Learned Hand Standard, Degrees of Negligence and Allocation of Damages: a Comparative Tort Law and Economics Approach

Abstract

The incremental Learned Hand standard is recognized as the main contribution of the law and economics literature to legal practice, as an objective criterion of negligence assessment. Traditionally, negligence gradation has been a factor considered by legal technology to allocate the damages. However, one of the main problems in legal practice lies in the establishment of objective criteria for quantitative assessment of the reduction or increase in the indemnity-damage ratio, considering the degree of negligence of the injurer and of the victim. Withal, is it possible to use the incremental Learned Hand standard as criterion of negligence graduation in order to allocate the damages? Using the theoretical foundations of law and economics literature in conjunction with the traditional legal classification of negligence into severe, ordinary and slight, and considering the Brazilian tort system as analytical basis, the paper shows that the answer is positive. The
basic idea is that the incremental Learned Hand standard is an algorithm which can be employed in
legal practice to systematize the allocation of damages, performing, according to the degree of
negligence of the injurer and of the victim, the full compensation or the decouple of the indemnity from the damages, streamlining the application of legal institutes such as comparative negligence, punitive damages, and equitable reduction of compensation (fairness).

Keywords: Law and Economics. Comparative Law. Tort Law. Incremental Learned Hand Standard. Negligence. Damages. Brazil.

JEL Classification: K13