Wednesday, August 30, 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.
Asking lawyers and law professors and judges what should be taught in law school is probably a little like asking parents what should be taught at their local elementary school. There will be a wide variety of responses, and consensus will be elusive. But the opinions elicited will certainly tell us something about the perspectives of the opining parties.
Some themes do emerge. Some commenters (Day, Swanner) want to work harder at imparting useful, practical skills and know-how. That’s a respectable opinion, and probably a widespread one, but I don’t really believe that law schools need to do more of this. Most law schools already make substantial curricular gestures toward teaching trial skills, to any students who really want to learn them. Clinical programs also give students a chance to learn their way around the practical block – which is fine, as far as it goes. For the most part, though, I think the acquisition of serious practical savoir faire must probably await actual practice – where practical issues will promptly hit recent graduates like 5-ton anvils dropping on their heads, generally to become their central preoccupation for the remainder of their professional lives. If we’re going to have law schools at all, rather than an apprentice system, we’ll do better, I think, if we try to give people three years in an Ivory Tower. Most law students will never have a later chance to learn doctrine and theory in such depth, and in my opinion, we should make the most of it.
But maybe I’m just an Ivory Tower kind of guy. The students themselves, no doubt, are pretty career-focused these days, and they would probably gobble up the practical stuff like so much ice cream.
Other commenters (Bailey, Frank) seemingly want to impart more of their own ideological perspective to the tort curriculum. I can’t blame them for trying, but I saw no shortage of opportunities for policy debate in law school. That seemed to be everybody’s favorite law-related pastime, in fact, and the anti-liability camp was far from under-represented. Personally, I question the fairness, at prevailing tuition rates, of taking up much more of the students’ time with inquiry into whether tort liability, or the adversary system, should be counted as good things or bad things. Let them have colloquia on that stuff over at the business school (where Ted Frank might feel more at home anyway). Let them agonize over there about the chilling effects on commerce that rules of conduct can have.
A number of commenters seem interested in exposing students to more cross-disciplinary knowledge (Owen, Shapo, and also McClurg, if comparative law counts). Not everybody agrees on the particulars, but the common wellspring of inspiration, perhaps, is that law students and lawyers could profit from a deeper awareness that there’s usually more than one way to think about things – and that many of these “other ways” have actually been tried, frequently with some measure of success. I’m obviously sympathetic to that viewpoint (questioning, as I do, whether there’s really as radical a gap between legal reasoning and other modes of rationality as it is fashionable, among lawyers, to suppose). Rather than attempt to cover all of the other intellectual traditions and perspectives that might legitimately claim some relevance to the law (or the torts curriculum), maybe the smart thing would be to pick one or two that seem likely to be of special and lasting value, and cover them really well – i.e., not in passing or token fashion.