Sunday, November 30, 2008

1025: Partnerships & UnIncorporated Associations

§ 1025. Partnerships and unincorporated associations. Two or more
persons conducting a business as a partnership may sue or be sued in the
partnership name, and actions may be brought by or against the president
or treasurer of an unincorporated association on behalf of the
association in accordance with the provisions of the general
associations law.

1022: Substitution; Extention of Time

§ 1022. Substitution: extension of time for taking procedural steps.
Unless the court orders otherwise, if the time for making a motion for a
new trial or for taking an appeal or for making a motion for permission
to appeal or for taking any other procedural step in the action has not
expired before the occurrence of an event permitting substitution of a
party, the period is extended as to all parties until fifteen days after
substitution is made, or, in case of dismissal of the action under
section 1021, is extended as to all parties until fifteen days after
such dismissal

1021:Substitution Procedure

§ 1021. Substitution procedure; dismissal for failure to substitute;
presentation of appeal. A motion for substitution may be made by the
successors or representatives of a party or by any party. If a person
who should be substituted does not appear voluntarily he may be made a
party defendant. If the event requiring substitution occurs before final
judgment and substitution is not made within a reasonable time, the
action may be dismissed as to the party for whom substitution should
have been made, however, such dismissal shall not be on the merits
unless the court shall so indicate. If the event requiring substitution
occurs after final judgment, substitution may be made in either the
court from or to which an appeal could be or is taken, or the court of
original instance, and if substitution is not made within four months
after the event requiring substitution, the court to which the appeal is
or could be taken may dismiss the appeal, impose conditions or prevent
it from being taken. Whether or not it occurs before or after final
judgment, if the event requiring substitution is the death of a party,
and timely substitution has not been made, the court, before proceeding
further, shall, on such notice as it may in its discretion direct, order
the persons interested in the decedent's estate to show cause why the
action or appeal should not be dismissed.

1018: Substitution Upon Transfer of Interest

§ 1018. Substitution upon transfer of interest. Upon any transfer of
interest, the action may be continued by or against the original parties
unless the court directs the person to whom the interest is transferred
to be substituted or joined in the action

Substitution of Committee or Conservator

§ 1016. Substitution of committee or conservator. If a party is
adjudicated incompetent or a conservator has been appointed, the court
shall order substitution of his committee or conservator

1014: Proposed Intervention Pleading

§ 1014. Proposed intervention pleading. A motion to intervene shall be
accompanied by a proposed pleading setting forth the claim or defense
for which intervention is sought

1013: Intervention by Permission

§ 1013. Intervention by permission. Upon timely motion, any person may
be permitted to intervene in any action when a statute of the state
confers a right to intervene in the discretion of the court, or when the
person's claim or defense and the main action have a common question of
law or fact. In exercising its discretion, the court shall consider
whether the intervention will unduly delay the determination of the
action or prejudice the substantial rights of any party.

1012: Intervention as of Right

§ 1012. Intervention as of right; notice to attorney-general, city,
county, town or village where constitutionality in issue. (a)
Intervention as of right. Upon timely motion, any person shall be
permitted to intervene in any action:
1. when a statute of the state confers an absolute right to intervene;
2. when the representation of the person's interest by the parties is
or may be inadequate and the person is or may be bound by the judgment;
3. when the action involves the disposition or distribution of, or the
title or a claim for damages for injury to, property and the person may
be affected adversely by the judgment.
(b) Notice to attorney-general, city, county, town or village where
constitutionality in issue. 1. When the constitutionality of a statute
of the state, or a rule and regulation adopted pursuant thereto is
involved in an action to which the state is not a party, the
attorney-general, shall be notified and permitted to intervene in
support of its constitutionality.
2. When the constitutionality of a local law, ordinance, rule or
regulation of a city, county, town or village is involved in an action
to which the city, county, town or village that enacted the provision is
not a party, such city, county, town or village shall be notified and
permitted to intervene in support of its constitutionality.
3. The court having jurisdiction in an action or proceeding in which
the constitutionality of a state statute, local law, ordinance, rule or
regulation is challenged shall not consider any challenge to the
constitutionality of such state statute, local law, ordinance, rule or
regulation unless proof of service of the notice required by this
subdivision is filed with such court.
(c) Notice to comptroller of the state of New York where public
retirement benefits are in issue. Where public retirement benefits,
paid, payable, claimed, or sought to be paid by a state retirement
system or any other retirement system established for public employees
within this state or any subdivision thereof, or the interpretation of
any provisions of law or rules governing any such retirement system or
the operation thereof, are involved in an action to which the
comptroller of the state of New York is not a party, the court shall
notify said comptroller, who shall be permitted, in his discretion, to
intervene in such action or to file a brief amicus curiae.

1066: Interpleader; Another Way In?

§ 1006. Interpleader. (a) Stakeholder; claimant; action of
interpleader. A stakeholder is a person who is or may be exposed to
multiple liability as the result of adverse claims. A claimant is a
person who has made or may be expected to make such a claim. A
stakeholder may commence an action of interpleader against two or more
(b) Defensive interpleader. A defendant stakeholder may bring in a
claimant who is not a party by filing a summons and interpleader
complaint. Service of process upon such a claimant shall be by serving
upon such claimant a summons and interpleader complaint and all prior
pleadings served in the action.
(c) Effect of pendency of another action against stakeholder. If a
stakeholder seeks to bring in a claimant pursuant to subdivision (b) and
there is pending in a court of the state an action between the claimant
and the stakeholder based upon the same claim, the appropriate court, on
motion, upon such terms as may be just, may dismiss the interpleader
complaint and order consolidation or joint trial of the actions, or may
make the claimant a party and stay the pending action until final
disposition of the action in which interpleader is so granted, and may
make such further order as may be just.
(d) Abolition of former grounds for objection. It is not ground for
objection to interpleader that the claims of the several claimants or
the titles on which their claims depend do not have a common origin or
are not identical but are adverse to and independent of one another, or
that the stakeholder avers that he is not liable in whole or in part to
any or all of the claimants.
(e) Issue of independent liability. Where the issue of an independent
liability of the stakeholder to a claimant is raised by the pleadings or
upon motion, the court may dismiss the claim of the appropriate
claimant, order severance or separate trials, or require the issue to be
tried in the action.
(f) Discharge of stakeholder. After the time for all parties to plead
has expired, the stakeholder may move for an order discharging him from
liability in whole or in part to any party. The stakeholder shall submit
proof by affidavit or otherwise of the allegations in his pleading. The
court may grant the motion and require payment into court, delivery to a
person designated by the court or retention to the credit of the action,
of the subject matter of the action to be disposed of in accordance with
further order or the judgment. An order under subdivision (g) shall not
discharge the stakeholder from liability to any claimant until an order
granted under this subdivision is complied with. The court shall impose
such terms relating to payment of expenses, costs and disbursements as
may be just and which may be charged against the subject matter of the
action. If the court shall determine that a party is entitled to
interest, in the absence of an agreement by the stakeholder as to the
rate of interest, he shall be liable to such party for interest to the
date of discharge at a rate no greater than the lowest discount rate of
the Federal Reserve Bank of New York for discounts for, and advances to,
member banks in effect from time to time during the period for which, as
found by the court, interest should be paid.
(g) Deposit of money as basis for jurisdiction. Where a stakeholder is
otherwise entitled to proceed under this section for the determination
of a right to, interest in or lien upon a sum of money, whether or not
liquidated in amount, payable in the state pursuant to a contract or
claimed as damages for unlawful retention of specific real or personal
property in the state, he may move, either before or after an action has
been commenced against him, for an order permitting him to pay the sum
of money or part of it into court or to a designated person or to retain

it to the credit of the action. Upon compliance with a court order
permitting such deposit or retention, the sum of money shall be deemed
specific property within the state within the meaning of paragraph two
of section 314.

1004: When Joinder Un-Necessary

§ 1004. When joinder unnecessary. Except where otherwise prescribed by
order of the court, an executor, administrator, guardian of the property
of an infant, committee of the property of a judicially declared
incompetent, conservator of the property of a conservatee, trustee of an
express trust, insured person who has executed to his insurer either a
loan or subrogation receipt, trust agreement, or other similar
agreement, or person with whom or in whose name a contract has been made
for the benefit of another, may sue or be sued without joining with him
the person for or against whose interest the action is brought

1003: Non-Joinder or Mis-Joinder of Parties

§ 1003. Nonjoinder and misjoinder of parties. Nonjoinder of a party
who should be joined under section 1001 is a ground for dismissal of an
action without prejudice unless the court allows the action to proceed
without that party under the provisions of that section. Misjoinder of
parties is not a ground for dismissal of an action. Parties may be added
at any stage of the action by leave of court or by stipulation of all
parties who have appeared, or once without leave of court within twenty
days after service of the original summons or at anytime before the
period for responding to that summons expires or within twenty days
after service of a pleading responding to it. Parties may be dropped by
the court, on motion of any party or on its own initiative, at any stage
of the action and upon such terms as may be just. The court may order
any claim against a party severed and proceeded with separately.

1002: Permissive Joinder of Parties

§ 1002. Permissive joinder of parties. (a) Plaintiffs. Persons who
assert any right to relief jointly, severally, or in the alternative
arising out of the same transaction, occurrence, or series of
transactions or occurrences, may join in one action as plaintiffs if any
common question of law or fact would arise.
(b) Defendants. Persons against whom there is asserted any right to
relief jointly, severally, or in the alternative, arising out of the
same transaction, occurrence, or series of transactions or occurrences,
may be joined in one action as defendants if any common question of law
or fact would arise.
(c) Separate relief; separate trials. It shall not be necessary that
each plaintiff be interested in obtaining, or each defendant be
interested in defending against, all the relief demanded or as to every
claim included in an action; but the court may make such orders as will
prevent a party from being embarrassed, delayed, or put to expense by
the inclusion of a party against whom he asserts no claim and, who
asserts no claim against him, and may order separate trials or make
other orders to prevent prejudice.
Return to Top

1001: Necessary Joinder of Parties

§ 1001. Necessary joinder of parties. (a) Parties who should be
joined. Persons who ought to be parties if complete relief is to be
accorded between the persons who are parties to the action or who might
be inequitably affected by a judgment in the action shall be made
plaintiffs or defendants. When a person who should join as a plaintiff
refuses to do so he may be made a defendant.
(b) When joinder excused. When a person who should be joined under
subdivision (a) has not been made a party and is subject to the
jurisdiction of the court, the court shall order him summoned. If
jurisdiction over him can be obtained only by his consent or appearance,
the court, when justice requires, may allow the action to proceed
without his being made a party. In determining whether to allow the
action to proceed, the court shall consider:
1. whether the plaintiff has another effective remedy in case the
action is dismissed on account of the nonjoinder;
2. the prejudice which may accrue from the nonjoinder to the defendant
or to the person not joined;
3. whether and by whom prejudice might have been avoided or may in the
future be avoided;
4. the feasibility of a protective provision by order of the court or
in the judgment; and
5. whether an effective judgment may be rendered in the absence of the
person who is not joined.

A Good Place to Start: Parties Generally


1001. Necessary joinder of parties.
(a) Parties who should be joined.
(b) When joinder excused.
1002. Permissive joinder of parties.
(a) Plaintiffs.
(b) Defendants.
(c) Separate relief; separate trials.
1003. Nonjoinder and misjoinder of parties.
1004. When joinder unnecessary.
1006. Interpleader.
(a) Stakeholder; claimant; action of interpleader.
(b) Defensive interpleader.
(c) Effect of pendency of another action against
(d) Abolition of former grounds for objection.
(e) Issue of independent liability.
(f) Discharge of stakeholder.
(g) Deposit of money as basis for jurisdiction.
1007. When third-party practice allowed.
1008. Answer of third-party defendant; defenses.
1009. Claim by plaintiff against third-party defendant.
1010. Dismissal or separate trial of third-party complaint.
1011. Successive third-party proceedings; counterclaims.
1012. Intervention as of right; notice to attorney-general,
city, county, town or village where constitutionality in
(a) Intervention as of right.
(b) Notice to attorney-general, city, county, town or
village where constitutionality in issue.
(c) Notice to comptroller of the state of New York where
public retirement benefits are in issue.
1013. Intervention by permission.
1014. Proposed intervention pleading.
1015. Substitution upon death.
(a) Generally.
(b) Devolution of rights or liabilities on other
1016. Substitution of committee or conservator.
1017. Substitution in case of receivership or dissolution of a
1018. Substitution upon transfer of interest.
1019. Substitution of public officers.
1020. Substitution of indemnitors for executing or attaching
1021. Substitution procedure; dismissal for failure to
substitute; presentation of appeal.
1022. Substitution: extension of time for taking procedural
1023. Public body or officer described by official title.
1024. Unknown parties.
1025. Partnerships and unincorporated associations.
1026. Review of determinations by administrative officers of the
unified court system.

Thursday, November 27, 2008

Inviting Myself to the Party(s)

My husband, who happens also to be my dearest friend, has been involved as a Plaintiff in a law-suit with his thieving partners for approximately five years now. The really sad part is that one of the thieving partners also happens to be his younger brother whom my husband dearly loved and looked up to, almost to the point of worship. Well to make a long story short,...after years and years of bickering and dickering between parties which went on constantly all through the long drawn out pre-trial motions and discoveries (which in fact the defendants are in non-compliance with and are about to get hit with a motion to compel) and after all those years we finally got it down to where we had a trial date set and a week or so before that date my hubbies lawyer came up missing! He was unresponsive to our calls and emails which was not typical for him. We simply could not locate him by any means so one day I decided to call the NY State Bar Association to see if they could help. I explained to them the situation and when they asked what was the lawyers name and I told them, they "er'ed" and ah'ed and "oh'd" and "Umm'ed" a bit before they finaly confessed what must have been an embarassment to them and their profession as a whole, as they told me this about our lawyer; that he had been permanently disbarred from practicing law in NY and was currently in jail serving a six-month sentence! Have mercy!
So, long story short, due in part to the partnership thievery, hubbie is going through some economic hard times and has even had to file a Chap 13 to save his home. He is unable to afford an attorney to replace the one that went to jail, and he now is caught up in the nighmare senario of having to face going to trial without a lawyer and NOT A CLUE as to what to think, say or do, or expect, and absolutley NO understanding of the process or "legaleze" at all! Anyone who has ever faced that prospect of having to represent themselves in court unwillingly or unwittingly knows what a terrifying feeling that can be, particularly when your adversaries have an endless supply of money and a team of high-fallootin lawyers to represent them! So, my heart goes out to poor hubby and I myself am in a quandry about what to do. I hate to stand by and watch as he gets screwd not only by his thieving partners but by a court system that would allow him to proceed un-represented by an attorney and "in ignorance" of the law! While I dont like to sound too much like I am "blowing my own horn," but I do feel however that I know a little more than your average bear about the law, the legal system and the whole dam criminal & civil judicial processes, but what good does it do me (or him) if, because of the "UnAuthorized Practice of Law" (UPL) thing,...I cant even advise him of what to do! I could however, in all confidence of staying well within the laws, tell him the story about "someone I knew" in a similar situation as him,....and what they did about it, and that "someone" just happened to be me! I told him about the time I filed suit against the City of Troy & the Troy Police Dept for harassment and infringment of several of my constitutional rights, and of my successful experience of "compelling" the courts to appoint me an attorney based on my inability to afford representation. I told him how, once after I had filed the case, and we were proceeding into litigation, I wrote a letter/motion to the judge simply asking for assignment of counsel, and told how it worked for me. Bottom line is, ALL judges have the discretionary power to assign counsel to indigent parties "in a proper case," and all I needed to show was that I was broke and my allegations in the complaint had merit. Based on those two factors, assignment of counsel was had! Wa-la! Due process, Access to the Courts (Right to Redress Grievances) and Equal Protection are also served. We'll hubby must have gotten the hint as I caught him next morning writing a letter to the judge asking for an attorney to be assigned to represent him in his case. It was a very nice letter and I was proud he could write so well and I offered to type it up for him which I did. He wrote about his bankruptcy and all, and of the merit of his case,...(but of course the judge knew that already, or the case would not have survived all the motions from our adversaries to dismiss. Had not my husband been able to show merit to his case, it would not have been allowed to come even this far, but would have been dismissed upon the grounds of "lacking merit" or "no cause" to sue, no "standing," or "no basis for a claim," etc.,whatever means or legal "vehicle" they will use to dispose of a "futile" or "frivilous" case. Hubbys case made it this far thru the system, although prior to this terrible time, he did have "a pretty good" attorney,....who, by the way, as the judge also well knows, took the case on a contigency basis as he "smelled the money" to be made from it. We are not talking peanuts here. We are talking about my husbands whole financial future that he was supposed to derive from the profits of this (family owned) partnership business that his elderly father left (1/3) to him and (1/3) to his thieving brother (and 1/3 to one other)...not only were the thieving partners robbing hubby blind of his monthly dividends over the last dozen years or so, ...they are robbing him of his inheritance too. The "partnership" was a family affair bequeathed in partnership to hubby by his father who wanted him to have an income for life from the dividends that would be earned. Ha! If only he knew what was happening he would roll over in his grave, and no doubt in my mind, ream out the thieving brother/partner as well.
Now lets see, where was I? Oh yes, my hubbies humble letter to the judge asking for assignment of counsel. Well, yesterdays mail bought a reply, and I tell you I nevr cease to be amazed! It simpley is NOT good a good thing when judges intentionally lie to decieve a person or even worse, dont really have a clue about their own discretionary power! Here is what the judge said,....exact words; "Dear Mr. Jubic,..The Court does not have the authority or ability to appoint someone to represent you in this litigation." Well I'll be. Here is a judge that is either lying outright or doesnt know a thing about the discretionary powers granted to all judges in all courts of the state persuant to Civil Practice Law & Rules Art.(CVP) 1101 which is; MOTION FOR PERMISSION TO PROCEED AS A POOR PERSON which has been interperted by case law from the HIGHEST court to mean assignment of counsel "in proper cases" ..when necesary, "in the interest of fairness and justice." I did a brief on this subject when arguing my own case for assigment of counsel based on indigency, and I just mayhave to dig it up and use it again. Hope I can find it. That case was 10 yrs ago. Moreover, to add insult to hubbies injury, the judge failed to treat hubbies letter as a pro-se motion and therefore did not even afford him the consideration of a proper "legal determination" on which hubby could base an appeal! All he got was an informal letter which IS NOT a legal (appealable) decision. What is needed here is a proper "Decision & Order" on his request for assignment of counsel, at least so he could appeal. Without that, there is no "final decision" to appeal. What to do what to do to help hubby and stay within the (UPL) laws? Remember my delema now, I cant even advise him! What a monopoly the legal sytem has on knowledge! How can that be?
The thought had occured to me that the least hubby could do for himself was to write another letter back to the judge and ask for nothing more than a proper legal Decison on his previous request for assignment of counsel, and to let the court know he needed that for the sole purposes of appeal,...but how could I advise him to do this without going afoul of the UPL law? What to do what to do? My heart is bleeding for poor so-wronged hubby and my mind was smoking with ideas on how best to go about helping him to help himself without my breaking any laws. I almost went ahead and said "to hell with the UPL laws," and proceeded to do a formal motion for him myself, which of course, would have been illegall for me to do, ...still, I was willing to go ahead and do it for him rather than see him get screwed on his own, ..even if it meant my getting dragged off to jail for doing so. I believe it is still a misdemeanor,...what can I get, 6-8mos tops? A fine, which I cannot pay anyways. Good thing they did away with debtors prison a long time ago or that is where I would be sitting today! LOL. But then, just as I was starting in to do the work, I had an epithany, and it just came to me: there was a better, more sure way of helping him without going afoul of the UPl laws. I would simply have to invite myself into the case somehow, someway, as "an interested party." After all, we are still married and share financial concerns and interest. What effects his financial status also effects mine, for a number of reasons. Now how can I invite myself in? The answer I think can be found in CVP 1001-and/or 1002, which concerns a "Necessary" or "Permissive" Joinder of Parties. I think I shall go for both. Stay tuned to this station for updates. I have got to get this done very very soon now, before the next in-person hearing on Jan. 5th. I am going to take a break now but will be back soon with more about Joinders of Parties and how I am going to make myself a co-plaintiff in this, my hubbies case.

Sunday, November 23, 2008

Introducing the Quantative "Reasonable Man,".. Woman, Person or Mind

Introduction Good morning from Newton, Massachusetts. Today's Legal theory Lexicon is about the "reasonable person," who used to be the "reasonable man" and is now occasionally the "reasonable woman." This topic was suggested to me by my host and friend, the eminently reasonable (and rational) Ken Simons of the Boston University law faculty yesterday, and Ken and I kicked around the ideas that follow.
The notion of a "reasonable person" usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the "reasonable person" is used to define the standard of care that triggers liability for unintentional harms. But what makes a "reasonable person" reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the legal theory lexicon introduces the "reasonable person" for the law student with an interest in legal theory.
A cautionary note. The word "reasonable" is used in a wide variety of legal contexts, some of which have very little to do with the reasonable person. In Antitrust law, for example, the notion of "an unreasonable restraint of trade" is crucially important, but this topic does not, at least on the surface, have anything to do with the reasonable person of torts and criminal law.
The Reasonable and the Rational This is, after all, Legal Theory Blog, so I hope you will forgive me for starting at a fairly high level of abstraction. "Reasonable" and "rational" are used in many different contexts and have a variety of meanings, but when I think about the "reasonable," the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.
When the rational is defined in contradistinction to the reasonable, rational usually refers to instrumental rationality--that is, the rationality of ends and means. Given that an agent has end X, it is rational for the agent to engage in action Y, only if Y will lead to X. Instrumental rationality is relative to the ends of a particular agent, and may (but need not) consider the interests of others. Thus, it may be instrumentally rational for me to steal from you, if you have something that I want and I have good reason to believe that I won't get caught. But it may also be rational for me to help a stranger, if I happen to have the welfare of others as my end.
When we contrast the reasonable with the rational, the notion of the reasonable goes beyond instrumental rationality. It may be rational for me to steal from you, but unreasonable for me to do so. Why not? Well, that is quite a question. One answer is based on the idea that the reasonable is, in some way, connected to what could be justified to others. Another idea is that the reasonable is in some way specified by that to which others would consent.
So as we are thinking about the "reasonable person," it is important to distinguish her from her cousin, the "rational person." The rational person may or may not take the interests of others into account. To be a reasonable person, however, is to consider the interests or viewpoints of others--to give them their proper due.
Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"? How much is enough? How much is too much? So far, we have only the general concept of the reasonable person. In order to make use of the "reasonable person" in the law, we need a particular conception of the "reasonable person"--a set of standards or criteria that will enable us to sort the reasonable actions from the unreasonable ones.
Subjective and Objective Reasonableness One more preliminary distinction--much is made of the difference between subjective and objective reasonableness. For example, we might, for example, distinguish between the "reasonable person" and the "reasonable intoxicated person" or the "reasonable person with a developmental disability" or the "reasonable person with a hot temper." Usually, we call the reasonable-person standard an objective standard, signifying that the we are not taking the particular characteristics of defendants in tort or criminal actions into account when we ask whether they met the relevant standard of care. Some critics of the reasonable person standard argue that its "objectivity" is a mask for a bias that favors some groups over others. On this, see Mayo Moran's forthcoming book Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.
Learned Hand and the Reasonable Person as Cost-Benefit Analyst The conception of reasonableness that is most familiar to contemporary law students was introduced by Judge Learned Hand in the famous Carroll Towing case.
[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
United States v. Carroll Towing Co., 159 F.2d 169, 173, reh'g denied, 160 F.2d 482 (2d Cir.1947); see also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.).
The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing is that it adopts cost-benefit analysis as the test for negligence. The reasonable person, so the story goes, analyzes the costs and benefits of her actions and does not act in such a way so as to impose costs that are not justified by their benefits. Economists might associate the Hand formula with what the economic concept of efficiency, and specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)
Even if the Learned Hand formula is best interpreted as employing cost-benefit analysis or the economic idea of efficiency, it does not directly follow that the purpose of the law of negligence is itself to promote the most cost-beneficial consequences. It might be, for example, that a strict liability regime (rather than a negligence regime) will produce the best consequences. There are two different questions regarding the relationship between cost-benefit analysis and the reasonable person. (1) Does the reasonable person standard employ cost-benefit analysis as the criterion for negligence?, and (2) Does cost-benefit analysis support the choice of negligence (as opposed to strict liability or no liability) as the rule governing nonintentional torts? Once the questions are separated, it is clear that they are different. It might be that the law employs a cost-benefit (Learned Hand) test as the standard of care in negligence cases, but that this approach itself is not the best when judged by cost-benefit analysis.
Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others Although many scholars interpret the Learned Hand formula as an endorsement of an economic approach to the reasonable person, others reject this move. The Hand formula can also be interpreted as reflecting an argument of principle (or fairness). At a very high level of generality, we might say that the reasonable person treats others with respect. This approach to the reasonable person is roughly correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative. The reasonable person, we might say, acts so that the maxim of her action (the principle upon which she acts) could be willed as a universal law--or to be put it differently, the reasonable person treats others as ends-in-themselves and not only as means. In this vein, Ronald Dworkin has argued that the Learned Hand formula can be understood as reflecting the moral equality of persons.
Virtue Jurisprudence and the Aretaic Conception of the Reasonable Person Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in particular from the idea that the focal standard for morality is the "virtuous agent," i.e. the person who posseses the moral and intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.
And the winner is . . . As you might guess, this is the point at which the Legal Theory Lexicon runs out of gas. Appropriately so. For this is a perennial question in legal theory--one for which simple and off-hand answers are hardly appropriate. But here is one more thing to consider. The contest between various interpretations of the "reasonable person" takes place at two different levels. First there is the level of fit. Which conception of the "reasonable person" is most consonant with the way that idea is used in the law? Second, there is the level of justification. Which conception of the "reasonable person" is supported by what we know about moral philosophy and political theory? And of course, it may turn out that the answers to these two distinct questions diverge. The best conception of the reasonable person may not be the conception that is implicit in the law of torts. And here is another complication. The reasonable person may wear a different suit of clothes to a tort case than she does to a criminal law case. What then?
Conclusion If you are a first-year law student reading this post, it is likely that you have recently or will soon make the acquaintance of the reasonable person. Understanding the reasonable person will not only be important to your study of torts and criminal law; the ideas with which you grapple in cases like Carroll Towing ramify throughout the law. Being able to articulate and argue about the proper interpretation of the reasonable-person standard equips you to understand debates about efficiency versus fairness (or deontology and consequentialism) that are fundamental to contemporary legal theory.
Heidi Li Feldman, Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law, 74 Chi.-Kent L. Rev. 1431 (2000).

Stephen Gilles, On Determining Negligence: Hand Formula Balancing, the Reasonable Person Standard, and the Jury, 54 Vand. L. Rev. 813 (2001).

Kyron Huigens, Virtue and Criminal Negligence, 1 Buff. Crim. L. Rev. 431, 447-58 (1998).

Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249 (1996).

Gregory C. Keating, Pressing Precaution Beyond the Point of Cost-Justification, 56 Vand. L. Rev. 653 (2003).

Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 Stan. L. Rev. 311 (1996).

Stephen Perry, Cost Benefit Analysis and the Negligence Standard, 54 Vanderbilt L. Rev. 893 (2001).

Richard Posner, Economic Analysis of Law (6th ed. 2002).

John Rawls, Political Liberalism (Paperback ed. 1995).

Steven Shavell, Economic Analysis of Accident Law, (December 2002). Harvard Law and Economics Discussion Paper No. 396.

W.M. Sibley, The Rational and the Reasonable, 62 Phil. Rev. 554 (1953).

Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inquiries in Law 283 (2002).

Kenneth W. Simons, The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values, 54 Vanderbilt L. Rev. 901 (2001).

Kenneth W. Simons, Negligence, 16 Social Philosophy and Policy 52 (1999).

Kenneth W. Simons, Deontology, Negligence, Tort, and Crime, 76 Boston U. L. Rev. 273 (1996).

Richard W. Wright, The Standards of Care in Negligence Law, in Philosophical Foundations of Tort Law 249 (David G. Owen ed., 1995).

Click on title above for article;