Tuesday, August 29, 2006
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.
Given that I run a little website on Daubert, people might assume that my main prescription for law school curricula, and for torts courses in particular, would involve more material on expert evidence. But I doubt that idea would do much good, unless the students had better preparation than may be typical for law school matriculants.
So let’s give them a required first-year course in Logic and Inference instead. We want lawyers to have mastered these arts. Yet most students don’t study them in college, and we don’t teach them in law school – not explicitly or directly, anyway. My law school experience at the University of Pennsylvania in the 1980’s is admittedly dated but probably remains typical. There was much self-congratulatory bombast about “thinking like a lawyer.” Everyone seemed to equate this with thinking very, very hard – much harder, at least, than was thought to be the collegiate norm. Yet the curriculum was oddly reticent about defining the forms of inference deemed legitimate and illegitimate. As a result, our efforts to “think like lawyers” were largely undisciplined. We mostly went about it by wrinkling up our brows, and squinting very hard, while thinking pretty much as we always had.
As it happens, lawyers have no monopoly on the study of valid forms of inference. The issue has been investigated by philosophers and logicians for millennia, and they have made especially valuable progress over the last hundred years or so. Law students should be given technical training in how to spot a valid or invalid syllogism, how to identify (and avoid committing) the standard logical fallacies, and how to disambiguate imprecise propositions. They should know their way around modus ponens and elementary principles of quantification, and they should be equipped to battle the law’s repeated attempts to seduce their minds with spurious invocations of the Law of the Excluded Middle.
If there’s time left over, we might give law students some bonus units on statistics, epistemology, and the sociology of knowledge. Statistics, because a nodding acquaintance with statistical modes of inference is increasingly an indispensable component of modern professional literacy. Epistemology, because lawyers should be professionally preoccupied with the question of what constitutes justified true belief. Sociology of knowledge, because lawyers should also be interested in how social forces shape the structure of knowledge and information, and should learn not to confuse the study and analysis of that topic with a simplistic relativism.
None of this, obviously, is uniquely germane to the tort curriculum. But classes on tort law do often focus of issues of High Policy, and law school is not too early to start acculturating students to the concept that discourse on such issues is more enlightening, when it is closely reasoned and reflects an intellectually critical outlook.