Monday, August 28, 2006
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
Marshall S. Shapo is Frederic P. Vose Professor, Northwestern University School of Law
I want to start by providing a historical frame for these remarks, which will reveal among other things my partisanship for Torts, which I regard as the most wonderful of subjects. When I began teaching Torts in 1965, it was a five or six credit required course almost everywhere and mostly taught in two semesters. Now, typically, it’s only a one-semester course of three or four credits. Although I recognize that the law has exploded in many directions in the last generation, I find this ironic. The practical applicability and density of tort law has expanded considerably, to a point that this aficionado would require nine credits if he could.
I spend enough time on my own casebook (Commercial: 3d edition, co-authored with Rick Peltz, to be published Augsut 2006) that I don’t look systemtically at the others. And I don’t see many other people’s syllabi. So I don’t know just what is and is not taught in other people’s courses around the country. But I will take some guesses, and allowing for a lot of different approaches that do not cover certain kinds of material, I will respond by saying what I think should be taught that either is not taught or is not taught enough. I do this—essentially highlighting some personal preferences—with the understanding of how difficult it is for people to jam more material into already overcrowded syllabi.
1) I think a first year course should introduce students to section 1983. What could be more tortious than an injury inflicted by a government official? The subject is certainly quantitatively important and it can add, early, an extra dimension to the way students think about injuries. I insert a Supreme Court decision in an early section on intentional torts, and I conclude my elective Torts II course with the first great 1983 case, Monroe v. Pape, and updating material.
2) Damages are literally the business end of Torts, and I introduce my elective course with a unit on damages. This is material that is both practical and intellectually challenging because of the relative incoherency of the decisions, particularly on review of damage amounts. Damages also provides an excellent platform to introduce “tort reform,” because in practice a lot of tort reform focuses on provisions like caps. I think it is worth squeezing in at least an hour on damages even in a compressed one semester course, if only to sensitize students to the importance of the topic.
3) The business framework of Torts is insurance. I use a little bit of text material to introduce the subject, and I make fairly frequent references to it in class.
4) I believe that even in tightly packed introductory courses, it is important at least to touch on how tort law relates to science and medicine, including proof of both biological and scientific causation. Daubert will certainly be standard fare in Evidence, but it has become pretty fundamental in many zones of tort practice.
5) I tend to pervade first semester Torts with procedure—a lot more than when I started teaching. From very early in my first semester course, I place cases in their procedural framework and insist on some literacy about the basic motions. Since procedure teachers are all over the lot with respect to when they introduce the fundamentals of civil litigation, I have come to think this is necessary. (Commercial: a very compressed review of basic procedure appears in Helene Shapo & Marshall Shapo, Law School Without Fear ch. 5).
6) Torts is a superb introduction to the impact on the individual or “concentrations of political, economic, intellectual, and physical power.” (See Marshall Shapo, Changing Frontiers in Torts: Vistas for the 70’s, 22 Stan. L. Rev. 330, 340 (1970)). No citations are needed to prove that this is a central challenge of modern life, and it is a theme that can be employed interstitially.
7) “Interdisciplinary” themes. Frankly, we’re doing enough in one-semester courses—for many students, more than enough—if we can introduce students to basic doctrines, the basic structure of litigation, and the plasticity of language. And I believe that these things are still absolutely fundamental. But Torts operates in a complex world of ideas and approaches from neighboring disciplines. Basic microeconomic theory shakes up at least half of the typical class. Students should be exposed, typically in the context of negligence doctrine, to not only Learned Hand, risk-utility, and cost-benefit tests—but yes, to the basic insights of the Coase theorem. What all these concepts teach, as I wrote more than thirty five years ago, are “the kinds of weighing that torts has always taught the best.”
The insights of feminism provide a nice counterpoint, involving both individual and social concepts of fairness, as well as behavioral reality. This leads to my belief that students also should have at least an introduction to social statistics and its kissing cousin “behavioral economics,” which at a minimum provide some confirmation of what students know, or can intuit, by living in the world. Example: data on decision-making by patients about surgery and drugs—easily blendable with informed consent.
8) Other social institutions dealing with injuries. I think it is important, even vital, to signal to students that Torts is just one wedge of the social response to injuries. I use a workers’ comp case in the first couple of weeks to introduce statutory compensation systems, which it turns out transfer more money to injured persons than tort judgments. The case I use happens to involve a schizophrenic breakdown, which gives me a two-fer, introducing how Torts deals with emotional life. In both my elective course and a seminar I use the September 11th Victim Compensation Fund, which is a fascinating amalgam of tort-mimicking provisions and comp law. I also wedge out an hour in the first semester to use a Supreme Court OSHA case to introduce regulation.
I see that I have set out a program. I wouldn’t expect anyone to adopt it anything like wholesale. I hope that it may give some of my colleagues in this great enterprise a way to improve their courses, to their own satisfaction and to the benefit of their students.