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Tuesday, August 29, 2006

Frank: Two Ideas

This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.

Ted Frank is Resident Fellow and Director of the American Enterprise Institute Liability Project.  He frequently blogs at Overlawyered and Point of Law.

The question of what tort law students should be taught that they're not taught is a tricky one, in part because there is no one "torts class."  My torts class at Chicago got split between two different professors, and they had entirely different approaches, lecturing styles, views on class participation, and editorializing.  A class using the Farnsworth & Grady casebook is going to have a different view of the world than a class using Epstein's casebook, and both will see things that aren't seen in more conventional casebooks.  Too, "Torts" is a big subject; the type of tort law seen by top-six law-school graduates going to work at big firms is a different animal than day-to-day auto-accident PI work, and problems with the one may or may not be problems with the other.  For example, I agree with just about everything Arnold Friede says, but, on the other hand, many many law students will never see a consumer class action in their careers.

But let me throw two ideas out there.  First is the concept that the "chilling effect" spoken of quite aptly in cases like New York Times v. Sullivan applies to more than just free speech, but also to positive economic activity.  Perhaps we as a society are willing to accept the cost to jobs and pharmaceutical development and quality of life that comes with unbridled tort liability, but that should be a decision made by the elected representatives of the people, rather than something imposed by fiat by a judiciary following the whims of law professors and activists.  I won't say that every law school fails to teach this (Emory's Paul Rubin and FSU's Jon Klick assured me otherwise at a recent panel I was on), but too many lawyers I communicate with seem unaware of this concept.

As I was trying to put into words my second idea, I came across a very recent Frank Easterbrook opinion where he does it much better than I would have:

"[There are] problems potentially caused by comprehensive discovery. A large firm... with thousands of employees generates mountains of internal paper. Some of the employees are bound to take almost any view about almost every subject."

Someone can go through three years of law school without understanding the degree to which the trial of a case with a corporate party is really all about this game of document-search and construction of a fiction around supposed smoking guns.  I think it's pedagogically important to recognize this, because it leads to other questions that are important and underexplored in law schools.  Is the adversary system well suited to resolve truth in the face of such game-playing?  If not, what are the costs of the errors?  Might there be questions or entire classes of questions where the judicial system is bound to make things worse?  If so, what does that imply for the increasing use of the tort system to resolve public-policy questions?

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» What Should Be Taught In Torts? from PointOfLaw Forum
Ten people from across the legal spectrumpractitioners and academics, a judge, a 3L who's also an MDparticipate in a blog-posium of sorts on the TortsProf blog this week. Check it out, including my contribution.... [Read More]

Tracked on Aug 29, 2006 5:39:55 AM

» "What should be taught in Torts?" from Overlawyered
The new symposium on legal education at Bill Childs' website is well worth a look-through, even aside from Ted's contribution.... [Read More]

Tracked on Aug 29, 2006 8:42:52 PM

» Response: Nordberg from TortsProf Blog
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses. Peter Nordberg is a shareholder in the law firm of Berger Montague and runs Daubert on the Web. [Read More]

Tracked on Aug 31, 2006 12:44:58 PM

Comments

The Chilling effect (vacines for example) and the got-you cases are defects of the adversarial method. If these concepts were stressed in law school, then the new lawyer would have a fuller appreceation of why his profession is held in disrepute, and there would be additional selection against decency, but there would be no improvment in litigation.

The Vioxx cases resulted from one datum in a large study that showed a 1.5% incidence against a 0.75% incidence, a result of no scientific significane (statistical significance is arcane). Without a theory of action no one can say that Vioxx had anything to do with a particular heart attack. Judges should not let juries make such determinations.

Seconly, the American public has to be educated that Ralph Nader and Eliot Spitzer are the Sadaam Hueseins
of law. These guys a heros to many.

Posted by: William Nuesslein | Aug 30, 2006 7:01:40 AM

"the American public has to be educated that Ralph Nader and Eliot Spitzer are the Sadaam Hueseins
of law.."

It's telling, the type of people who take Ted Frank seriously.

Posted by: Seth (not a lawyer) | Aug 31, 2006 1:01:48 PM

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