TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, August 31, 2006

Reply: Nordberg

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.

I always enjoy exchanging views with Ted Frank, despite our tendency to see things differently on nearly every earthly subject.  Maybe it’s because Ted is so unfailingly polite, even when he worries that he hasn’t been.

On the issue of ideology in the classroom, maybe I should have been a little clearer.  Legal positivism notwithstanding, there is no such thing as “value free” law, and law schools should not promulgate the fiction that there is.  Especially not in torts class.  To the contrary, students should develop a healthy appreciation that the tort system has winners and losers, and that our legal rules are not mere lemmas following ineluctably from some immutable set of neutral principles, written in the sky.  Legal rules implement policy choices that are open to rational debate, and they reflect an often imperfect balance between competing and sometimes incommensurable social values.

So although I don’t share the view that the legal academy is currently overtaken with a pro-liability bias, neither do I begrudge classroom discussion of the McDonald’s coffee case.  Admittedly, it’s just one case, out of the millions that have contributed to our nation’s jurisprudence since the Founding.  But it may be one suitable vehicle for honing students’ skills at policy analysis.  It is also so canonical a fount of anti-tort wisdom, by now, that any law school graduate would be at severe disadvantage during cocktail hour, if not conversant with it.

What I do think is that not every policy debate contributes to the inculcation of specialized legal knowledge.  There’s something to be said, perhaps, for exposing graduate students in all fields and disciplines to critiques tending to call broad swatches of their whole professional endeavor into radical question.  But that is not a practice we tend to follow with any special zeal in other areas.  Business schools do not generally bring in weekly guest lecturers on the negative social and spiritual consequences that follow from the human and corporate pursuit of economic gain.  It is assumed that a vast literature on that subject is already available to the B-school students, and that it was open to them to become ministers, or social anthropologists, if they wanted to.  We likewise assume that candidates for doctoral degrees in physics already know, or can easily find out, that scientific knowledge can be used for good or evil.  If we nevertheless make them pay tuition to attend compulsory seminars on that topic, the seminars had better tell them something they didn’t already know – something that may prove useful to them in their professional endeavors, or that may add in some valuable way to the fund of knowledge with which their general education has already endowed them, or with which their professional and life experiences soon will.

So too with law.  Yes, lawsuits are usually time-consuming, resource-devouring, agenda-disrupting endeavors, for everyone involved.  As a solution to any person’s problems, they should be considered a last resort (leaving aside such nonsolutions as physical violence or acquiescent deference to the will of the stronger).  It’s impossible for me to believe that any law students lack a basic understanding of these features of our legal system by the time they matriculate.  They form a fundamental theme of our literature and culture, from Dickens to Kafka to Ted Frank.  And if it has previously escaped students’ attention that discovery, for example, can be a burdensome thing, or that its burdensomeness can be exploited to tactical advantage, that subject is sure to come up, as matters already stand, sometime during the discussion of Rule 26 during first-year civil procedure class.  Likewise, if any students fail to grasp, by the time commencement rolls around, that our legal system creates costs for commercial enterprises – costs those enterprises would quite naturally prefer not to incur – then I’m willing to agree to withhold those students’ diplomas, pending their completion of a summer-school course at the Manhattan Institute.

I’m sure, in short, that many students would enjoy putting down the casebooks for a spirited rehashing of everybody’s armchair opinions on whether litigation is a good thing or a bad thing.  But unless further discussion of these topics has something tangible and useful to contribute to their professional education, beyond whatever any college graduate could already glean from the extensive public debate on these issues, I’d prefer to move on, in law school, to more intellectually and professionally nutritious subjects.

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