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Conference Proceeding

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I would like to say a few words about the hindsight test, which in my teaching I have called the ex post Learned Hand test. Any suggestion that this test is new is mistaken. Besides its use by Deans Wade and Keeton, the hindsight test appeared, albeit a bit obscurely, in a marvelous nineteenth century case, Mayor of New York v. Lord. Lord presented the question of whether the city should pay damages to a lessee of a store that the city blew up to create a fire break. The court, acting under a statute, saw three possible approaches to this question: treat the destruction as a "taking" and hold the city liable regardless of the circumstances; adopt a fault theory and ask whether a reasonable person would have foreseen that the destruction of the store was unnecessary and would not have blown it up; or apply the hindsight test, as the court actually did, and hold the city liable if, after the fact, it was apparent that the destruction of the store was unnecessary. This case is a wonderful, and old, example of how the hindsight test might be applied.

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