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Widener Commonwealth Law School

Thursday, August 31, 2006

Response: Frank: What Common Law Tradition?

This is part of the series of guest posts about what should be taught in Torts.

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

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 would go further and challenge McClurg's premise: what common-law tradition?  Roger Traynor did more to upset the common-law tradition than any reformer.  Product liability law is a modern creation that overturned centuries of common-law tradition, as is strict liability for socially productive activity, as are class actions (much less class actions permitting recovery without cognizable injury), as is the distortion of "public nuisance" law to take on handgun or lead paint manufacturers, as are torts such as "wrongful birth," as is the notion that cost-benefit analysis is an appropriate subject for punitive damages (as opposed to Learned Hand, who identified cost-benefit analysis as the appropriate means of determining due care).  I daresay that Peter Huber's notion of optimal tort law is closer to the common-law tradition than ATLA's.  Or is it only a danger to the common-law tradition when changes might harm plaintiffs' lawyers?  (Are "memorial damages" a threat to the common-law tradition?)  And is it really the case that only the judiciary is allowed to utterly rewrite the law? 

Separately, Peter Nordberg pooh-poohs my post's suggestions as injecting "ideology" into the classroom.  To the extent ideology in the classroom is a problem, Martin Grace's post suggests that it sure isn't an ideology of reform.  How many law professors spend time "debunking" the McDonald's coffee case (which needs no debunking), and how many spend time debunking the myth of the exploding Ford Pinto?  (As unbelievable as Professor Grace's experience seems, I recall having a similar experience in a criminal law class when I mentioned cost-benefit issues, and I went to law school at the freaking University of Chicago.)  But I disagree that I was injecting ideology; I was merely making the same point as plaintiffs' attorney Dave Swanner, which is that torts classes don't quite teach what actually happens in a tort case.

I'll be more polite to Peter's opening post, which makes suggestions that aren't quite tort-specific; I agree that law students should get more training in statistics, in logical reasoning, in scientific thinking.  One can think of other examples, such as basic business concepts.  I'd go even further and posit that law schools that graduate students who haven't had at least an intermediate-level microeconomics course are doing the profession and society a disservice.

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» Reply: 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. I [Read More]

Tracked on Aug 31, 2006 2:31:15 PM

» McClurg: In Defense of the Common Law: McClurg’s Response to Moreland and Frank 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.Andrew McClurg is the Herbert Herff Chair of Excellence in Law, Cecil C. Humphreys School of Law, The University [Read More]

Tracked on Sep 3, 2006 12:59:53 PM


Shorter Ted Frank: "I wish I lived in a Dickens novel."

Posted by: Seth (not a lawyer) | Aug 31, 2006 12:52:54 PM

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