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Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, August 28, 2006

McClurg: Three Things We Should Be Teaching In Torts (But Aren’t)

Andrew McClurg is the Herbert Herff Chair of Excellence in Law, Cecil C. Humphreys School of Law, The University of Memphis.

Thanks to Bill Childs for developing the idea for this interesting discussion, assembling such a distinguished and diverse panel of contributors, and inviting me to participate.  Here are three topics I don’t believe get enough attention from Torts professors in the classroom:

1.  The common law tradition is at risk in the “tort reform” era.  We need to be talking a lot more about the process of “tort reform” (although the content is also important).  I doubt that most of today’s law students appreciate how rapidly and fundamentally the orthodoxy of common law decision-making in the tort arena is being altered by tort reform legislation and preemptive or potentially preemptive administrative regulations. Torts casebooks still focus almost exclusively on common law. Sure, the books and the professors who teach from them talk a little about tort reform, but most students probably emerge from Torts with a distorted perception of how tort law is being fashioned in the twenty-first century.

Students need to understand that a radical reordering of the hierarchy of tort law formation is taking place in the U.S.  Whether they’re for or against tort reform, students should be encouraged to think critically about a process by which a hundred years of considered and incrementally developed common law can be spontaneously erased and/or rewritten by legislators or bureaucrats.

As part of this critical thinking process, students should be taught to question the content of both sides of the tort debate, so much of which occurs in a fog of distortion and misinformation.  More and more students arrive at law school believing the tort system is completely broken, but most of them don’t have any foundation for their opinions other than tired anecdotes like the misunderstood McDonald’s coffee spill case or, worse, cases that never even happened, such as the apocryphal plaintiff who used his lawnmower as a hedge trimmer or the one who set his RV on cruise control while he went back to make a cup of coffee.

Of course, both sides in the debate are guilty of using fallacious rhetoric and both sides should be exposed.  The pro-reform rhetoric worries me more because: (1) it leads to frequent, sometimes dramatic and ill-considered action, rather than only inaction; (2) has managed to lay claim to the label of “reform” even though the movement is wholly one-sided, ignoring defects in the tort system that adversely affect plaintiffs (wrongful death damages being my pet example); and (3) frankly, has been much more effective than the ho-hum rhetoric of the “greedytriallawyers,” rumored to be coming out as a single word in the next edition of the Oxford Dictionary.

While it probably sounds like I’m an opponent of improving the tort system, that’s not accurate.  As a longtime disciple of James Henderson and Aaron Twerski and their fairly conservative brainchild, the Products Liability Restatement, when I teach Products Liability, I probably come across to students as pro-manufacturer.  My concern is that the common law tradition, which I respect and cherish, is endangered.  I believe, as Guido Calabresi wrote in A Common Law for the Age of Statutes, that there are benefits to the “slow, unsystematic and organic quality of common law change.”

In writing a recent comparative law text (see below), it occurred to me that our common law tort system increasingly resembles a civil law system, in which law emanates primarily from statutes and regulations, rather than from courts.  Hey, there’s an idea.  If legislators knew that’s the way they do things in France, they might change their minds … but I digress.

2.  The parties in tort cases are real people.  This point ties in to the ongoing discussion Bill has featured about the need to humanize tort law for students.  We have fun with tort cases and we should because they are fun.  But along the way, students need to be reminded that the cast of characters in tort cases are human beings, some of whom have suffered horribly.  My own appreciation of this point came from a personal event I wrote about in Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages [PDF]. I won’t belabor the case for humanizing torts here, but instead refer everyone to Bill’s several posts on the topic: 5/2/06, 3/14/06, 3/13/06, 3/10/06, 3/10/06, 3/9/06, 3/7/06, 1/17/06.

3.  Comparative law.  “Globalization” is, of course, a popular catchword in modern American legal education.  Once an obscure blip on curricular radars, more and more U.S. law schools are developing courses and programs in international and comparative law.  Nevertheless, for most U.S. law professors, comparative/international law seems, well, foreign, not to mention inaccessible, uninteresting, and unimportant to their lives or the lives of their students.

I shared that view when I moved to Miami in 2002 to become a member of the founding faculty at Florida International University College of Law, South Florida’s public law school.  (I recently moved to The University of Memphis).  Uniquely, the FIU College of Law curriculum requires that all courses, including domestic law courses, include a comparative and/or international law component. Arriving at FIU I had no background or interest in comparative or international law.

Living and teaching torts and products liability in Miami changed my mind by greatly enlarging my limited world view. Miami-Dade County is a cultural melting pot in the truest sense of the term.  Fifty percent of the county’s 2.3 million residents were born in another country. Already, FIU’s “majority-minority” student body has included students born in forty different countries.  This amazing student diversity demanded that I broaden my torts horizon.

Ahh, but that’s Miami, you say.  It’s not like that where you live.  Not yet, but U.S. demographics are changing rapidly.  The U.S. Census Bureau predicts that the U.S. will be a majority-minority nation in fifty years. One of my former colleagues at FIU, Ediberto Román, was fond of saying that “the rest of the country is going to start looking more and more like Miami.”  He’s right.  At FIU, I think I saw the future of legal education, and comparative/international law is part of it.

Not wanting to be left behind by the times, I delved into comparative tort law and ended up co-authoring Global Practical Tort Litigation: the United States, Germany and Argentina (A Contextual Approach), which will be published in 2007 by the Carolina Academic Press.  (Forgive the shameless plug.)  One of my co-authors, Luis Sprovieri, is a partner at Baker & McKenzie’s office in Buenos Aires, where he oversees the firm’s products liability group for Latin America.  In the conclusion to our book, Luis speaks effectively to why U.S. law schools should be teaching comparative tort law to their students:

Many U.S. law students still may not be aware of the rapidly changing global situation with regard to the practice of transnational law. You are, whether you know it or not, preparing to practice law around the world. In my practice, I witness daily the cliché that “the world is shrinking.” Many of the clients I work with are U.S. companies engaged in worldwide business. I often work closely with their in-house and outside counsel. Coping with the challenges of the borderless marketplace will depend in part on one’s ability to understand foreign law, culture, and legal traditions. All U.S. lawyers would benefit simply from having some clue about what their foreign colleagues and adversaries are talking about when, for example, they make references to basic procedures and principles of the civil law tradition. In other words, international training will pay dividends to today’s law students.

I think he was trying to say, nicely, that most U.S. lawyers are, in fact, clueless about even the most basic principles of the civil law tradition, which is both much older and more widely distributed worldwide than the common law tradition.  I was until recently.

Introduce your students to worldwide tort systems and learn a lot in the process.  In composing our comparative tort litigation book, I not only discovered fascinating similarities and differences in how tort cases are handled in other nations, I also gained a fresh and deeper appreciation for the U.S. common law tradition.

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» Moreland: Maybe Common Law Isn't Always Best from TortsProf Blog
Michael Moreland is an assistant professor at Villanova University School of Law. Most recently, he was Associate Director for Domestic Policy at the White House. Thanks to my former Williams Connolly colleague Bill Childs for arranging this series of ... [Read More]

Tracked on Aug 31, 2006 9:09:11 AM

» Response: Frank: What Common Law Tradition? from TortsProf Blog
This is part of the series of guest posts about what should be taught in Torts. Michael Moreland does a nice job of responding to Andrew McClurg's comment about tort reform putting the common law tradition at risk. But I [Read More]

Tracked on Aug 31, 2006 11:57:48 AM


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