August 31, 2006
Updated - What Should Be Taught In Torts? A Series of Guest Posts
(Bumped to the top to note Sunday's new post.)
This week, being back-to-school or welcome-to-school at many law schools, I've invited what I think is a pretty great range of people -- from torts profs to law students to practicing lawyers to a judge to policy people -- to submit guest posts on what should be taught in law schools' torts classes. As you'll see, the responses were quite varied and interesting.
Monday and Tuesday will feature the initial posts, with the rest of the week set aside for responses by the authors or by others. If you have a comment that you think would better be a post rather than in the comments field, send me an e-mail (wchilds AT law DOT wnec DOT edu).
Andrew McClurg provided a response to the posts from Ted Frank and Michael Moreland.
Michael Moreland responded to Andrew McClurg's post. Moreland is an assistant professor at Villanova University School of Law and most recently worked in the White House.
Ted Frank has provided a response to McClurg's and Nordberg's posts.
Peter Nordberg has replied to Frank's response.
RiskProf has an interesting post wanting more focus on economic realities of the tort system. (I think that's a fair description of the post.)
There are also interesting comments, several to this post (click on "comments" below if you don't see them). In addition, there are two commenters on Nordberg's post, including my colleague Jamie Colburn and Amos Presler, who has the interesting perspective of having worked for a plaintiffs' expert in litigation. (He may have worked as a defense expert too; Google is silent.) Finally, one of Professor Shapo's former students suggests the value of folk music.
I'm expecting to receive some other comments and will post them as they arrive.
David Owen: What I Wish 1st Year Torts Students Would Learn. David Owen is the Carolina Distinguished Professor of Law and Director of the Office of Tort Law Studies at the University of South Carolina where he teaches courses on Tort Law and Products Liability.
John Day: The Economics of Case Acceptance. John A. Day is a founding member of Branham & Day in Brentwood, Tennessee. He is a prolific blogger, most notably at DayOnTorts.com. His firm primarily represents plaintiffs in civil litigation.
David Swanner: What Should They Teach at Law School? Dave Swanner is a plaintiff's attorney with the second trial related blog in the country, SCTrialLaw.com. He's a sole practitioner and used to teach interrogation for the Army.
Marshall Shapo: What Should Be Taught. Marshall S. Shapo is the Frederic P. Vose Professor at Northwestern University School of Law.
Robert Bailey: More Balance. Robert W. Bailey, MD, FACS, is a Professor of Surgery (former) & third-year law student at Florida International University College of Law.
James M. Rosenbaum: Common Law. Judge James M. Rosenbaum is the Chief Judge in the District of Minnesota. I clerked for him.
Andrew McClurg: Three Things We Should Be Teaching in Torts (But Aren't). Andrew McClurg is the Herbert Herff Chair of Excellence in Law, Cecil C. Humphreys School of Law, The University of Memphis.
Arnold Friede: Taking Proximate Cause Seriously. Arnold Friede is Senior Corporate Counsel at Pfizer. Prior to joining Pfizer in 1998, he served in various roles, including Vice President and General Counsel, at Unilever. He has also worked at the FDA.
I will update this post throughout the week to include links to the various pieces.
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superseding intervening cause...which is well established in maritime law...
Posted by: Dwayne Clark | Aug 28, 2006 9:19:08 PM
1) The core of duty is foreseeability. Predicting the future is a supernatural power. Even the orbits of the planets have chaotic uncertainty from passing bodies and unknowable forces. Foreseeability is a superstitious conceit. This doctrine originates with Scholasticism and Peter Abelard's theory of accidents. Abelard was a monk who lost his testicles in a pioneering urologic procedure performed by 2 thugs on contract with his uncle in law. In Scholasticism, predicting the future is within the province only of God. Duty, the core of torts, thus violates the Establishment Clause. Not even the Medieval Church was stupid enough to think the future could be predicted by man. Only the dumbass lawyer does.
I find the collaboration of an empiricist surgeon in this lawyer exercise shocking. Doc, these lawyers believe in future forecasting.
2) Tort immunity is growth. Government and the lawyer have dealt themselves immunities and have become overgrown. The absence of recourse frustrates an aim of torts, the prevention of disruptive self-help. In the absence of recourse, self-help is justified for the damages resulting from lawyer and governmental carelessness.
3) Dwayne, superseding intervening cause "reasonably foreseeable" by the defendant is not an effective defense.
Posted by: Supremacy Claus | Aug 30, 2006 1:19:48 AM
A very short discussion of Tortious Intereference with Contract would be helpful. As a non-litigator, I am asked about that more than any other tort.
Posted by: Dan Chowdry | Sep 1, 2006 1:48:19 PM