Thursday, August 30, 2012
Don Gifford (Maryland), Joseph Kroart, Brian Jones (Villanova-Sociology), and Cheryl Cortemeglia have posted to SSRN What's on First? Organizing the Casebook and Molding the Mind. The abstract provides:
This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all three groups of students shifted toward a belief that judges consider social, economic, and ideological factors, the degree of the shift differed in a statistically significant way depending on which torts their professors taught first. These differences persisted throughout the semester, even after they studied other torts. Further, these differences were observed even when the analysis controlled for law school ranking and were more pronounced among students attending the highest ranked schools.
In interpreting the survey results, the authors employ sociologist Erving Goffman’s theory of “frame analysis” and the work of cognitive psychologists including Amos Tversky and Daniel Kahneman on “anchoring.” The Article concludes that the category of tort liability to which students are first exposed affects the “frame” or “lens” through which they view the judicial process. This frame becomes anchored and persists throughout the study of other tort categories. The lessons about the nature of the judging process learned implicitly through the professor’s choice of topic sequence may be even more important than the substantive topics themselves.
Tuesday, August 7, 2012
On Monday, the United States Court of Appeals for the Ninth Circuit certified three questions to the Washington Supreme Court in a caes "perfect for a first year torts exam." McKown v. Simon Property Group Inc. (pdf) involved a shooting at the Tacoma Mall in 2005. The plaintiff, a store employee at the mall, was injured and sued the mall owner. The Ninth Circuit certified three questions concerning the scope of the mall owner's duty to protect a mall employee from the criminal acts of a third party:
1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?
2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence?
3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?
Courthouse News Service has more on the case.
Friday, July 27, 2012
Mike Rustad (Suffolk) has posted two pieces to SSRN. First, he reviews Marshall Shapo's new book in The Myth of a Value-Free Injury Law: Constitutive Injury Law as a Cultural Battleground. The abstract provides:
This review essay critically examines Marshall Shapo’s new book, An Injury Constitution. Shapo’s new book provides a counter to simplistic arguments that torts is driving our economy into a death spiral by jackpot justice judgments in which undeserving plaintiffs collect enormous awards given by runaway juries. Drawing upon forty-six years of torts scholarship and teaching, Shapo’s pluralistic theory demonstrates how injury law reflects our culture and our inner life, as well as our aspirations to constrain bullies and the reckless acts that endanger society. In its eleven chapters, this book contends that American injury law has evolved as the functional equivalent of a constitution.
Second, from the AALS mid-year meeting last month is Tort Teaching Lessons from the BP Oil Spill. The abstract provides:
This article is drawn from my talk on the topic of "How to Teach Disaster as Part of a Torts Curriculum" at the AALS Workshop on Torts, Environment and Disaster from June 8-10, 2012, in Berkeley. This piece draws upon an informal survey I conducted in the spring of 2012 on how torts teachers employed the BP oil spill disaster (and other disasters) in their basic torts course (to illustrate topics such as the economic loss rule, legal causation, damages, and the impact of safety regulations).
Tuesday, July 17, 2012
An Oregon mother filed suit last week against the singer Justin Bieber for hearing loss allegedly caused by the "frenzy of screams" that Bieber incited in his young fans at his 2010 Portland concert. The complaint alleges that Bieber exacerbated the noise by flying over the crowd in a metal gondola. TMZ has more, including video of the gondola if you are interested.
I'd think this would make a good assumption of the risk hypo in class. I mean concert goers know concerts are loud, right?
Tuesday, June 19, 2012
The ABA’s Legal Education, ADR and Problem Solving (LEAPS) Project has developed some materials to help law school faculty incorporate some instruction in practical problem-solving in various courses. Many of the ideas would require little or no additional time for instructors or students. For example, when discussing selected cases in doctrinal courses, faculty can frame questions in the context of client interviews or counseling or negotiation between lawyers instead of appellate arguments.
The project has also assembled panels of consultants in eight subject areas to provide advice and materials specific to those subjects. Torts is one of the subjects included.
The website has a lot of useful information about teaching techniques generally and links to other resources: http://leaps.uoregon.edu/.
Thanks to Sarah Cole (Ohio State) for the tip.
If you like to use current events in your class, this might provide some good hypos: Rappers Chris Brown and Drake were involved in an altercation at a SoHo nightclub. Bystanders apparently were injured in the melee, and one now plans to sue.
Details at NY Daily News.
Monday, April 30, 2012
A Georgia middle school student has sued two classmates (along with their parents) for libel and intentional infliction of emotional distress based on a fake Facebook page that the classmates created in the student's name. According to the Daily Report,
The lawsuit has helped [the student's attorney Natalie] Woodward achieve one important change for her clients—getting the page dropped from Facebook. Woodward made arrangements for Alex to tell her story on CNN this past Saturday morning with her lawyer. After they left the TV studio, Woodward said, Facebook called CNN to get Woodward's contact information. Three hours after the CNN segment aired, the fake Facebook page disappeared from the website.
Thanks to Lisa Smith-Butler for the alert.
Tuesday, April 10, 2012
Friday, March 2, 2012
Today Wolters Kluwer releases the 10th edition of the Epstein casebook, with Cathy Sharkey (NYU) as a co-editor. To see Epstein & Sharkey's Cases and Materials on Torts, click here:
The Tenth Edition represents the launch of a new partnership between Richard Epstein, who has edited this casebook since 1977, and Catherine Sharkey, who joins as co-editor for this and future editions. Our goal is nothing short of producing a Torts casebook for the next generation of torts professors and students. With that in mind, we have held fast to all of the intellectual rigor, historical depth, and careful case selection and comprehensive notes of the previous nine editions. But we have embraced change as well, adding diverse perspectives (such as race and gender-based critiques of damages calculations), incorporating contemporary empirical scholarship (especially on medical malpractice, damages and jury decisionmaking), and addressing the influence of technology (such as privacy and defamation in the Internet age). It is fitting that, with the Tenth Edition, we introduce the Smart Book electronic edition of the casebook, which will create opportunities for professors and students to incorporate additional materials, including photographs, podcasts, and videos.
We received requests for modest additions, including references to the Second or Third Restatement or other governing law. Many edits reflect this valuable feedback from professors who have used previous editions of the casebook. On several professors' request, we have also added "Problems," which are hypotheticals based on real cases. They are designed to test student understanding of major concepts, and answers are discussed in this Manual.
We welcome dialogue with all users of our casebook. We have benefited greatly from comments and criticisms received over the years. And we imagine that the new Smart Book will only open the door further to such collaboration. It is our hope that, together, we can build the most effective casebook for a new generation. We are eager to hear from you: email@example.com; firstname.lastname@example.org.
Thursday, February 2, 2012
Samson Vermont (Miami) has asked for your input for his seminar class. Do you know of any pending tort cases that turn on actual cause or proximate cause? He is looking for cases (in any state or federal court) that are on appeal or expected to be on appeal. Or, as another alternative, a case that did not get appealed but could have been appealed on causation grounds.
You are welcome to reply in the comments.
Tuesday, January 31, 2012
For the first several (roughly 5) years I was a law professor, I taught the same course package. In a prior life I was a litigator and so I taught a litigation package. We have two semesters of Torts here and I taught Torts I and Torts II. I also taught Evidence and Professional Responsibility. I enjoy all of these courses. There is definitely an advantage to retaining the same courses; you learn the material thoroughly and you can focus more resources on scholarship.
This year, 3 of my 4 courses are new preps. In the last year and a half, I have taught 4 new courses. I have added Insurance, Products Liability, Contracts I and Contracts II. I have enjoyed the new material, and I feel like it has given me a better understanding of tort law. For Insurance and Products Liability, that makes a lot of sense given how related they are. It also applies to Contracts. Teaching Contracts helps map the boundary between the two topics.
In teaching the new courses, I have been delighted with my casebook selection. In Insurance, I use Ken Abraham's "Insurance Law and Regulation (5th ed. 2010)." The book is well-organized and I like the inclusion of actual insurance policies. In Products Liability, I am using David Owen, John Montgomery, and Mary Davis's "Products Liability and Safety (6th ed. 2010)." I'm still making my way through it, but the first chapter provides a number of perspectives on products and the subsequent organization is good. The notes are thorough and engaging. Moreover, the authors of these 2 books are very helpful. In Products, both David and Mary have offered guidance on syllabi, paper topics, and guest speakers. In Insurance, Ken Abraham once responded to an e-mail question in 15 minutes...from Paris.
For my Torts casebook, I use Marc Franklin, Robert Rabin, & Mike Green's "Tort Law and Alternatives (9th ed. 2011)" and have used that book from the beginning. I like it a lot. It is thorough and the case selection is engaging. In the future, I may try another casebook simply for the sake of variety. Two casebooks that have caught my eye: Tom Galligan, Phoebe Haddon, Frank Maraist, Frank McClellan, Mike Rustad, Nicholas Terry, and Stephanie Wildman's "Tort Law: Cases, Perspectives, and Problems (4th ed. 2007)" and John Goldberg, Tony Sebok, & Ben Zipursky's "Tort Law: Responsibilities and Redress (2nd ed. 2008)."
Thursday, January 12, 2012
We traveled to Orlando last weekend. My wife and I ran the Disney Half Marathon, and then she ran the Disney Full Marathon the next day, because she is Capital-C Crazy. And amazing.
But first we went to LegoLand, which reminded me of this excellent (if nitpickable) Lego stop-motion telling of Palsgraf. I showed it in my Torts class last night:
We also went to the Wizarding World of Harry Potter, a remarkable theme park within the already-remarkable Islands of Adventure. I particularly enjoyed the way they even themed the warning signs, perhaps increasing the number of people who will actually read them:
Thursday, December 8, 2011
In my Torts class, we discuss consent to intentional torts in, among other contexts, sports -- in particular hockey. Given the interesting evident difference between what is technically prohibited and what is generally accepted as part of the game, it's a nice foundation for a conversation. Add to that the New York Times extensively-researched look at hockey through the life, and death, of "enforcer" Derek Boogaard. Certainly worth a read.
Tuesday, December 6, 2011
Summers v. Tice is an iconic first-year Torts case. Kyle Graham (Santa Clara), guest blogging at Concurring Opinions, visited the California State Archive and reviewed the old case file. His research provides interesting information on the case background:
Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant. Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction. Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home. These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.
Friday, October 21, 2011
The Georgia Supreme Court agreed to take up a case challenging the limitations of liability for landowners when a person is injured by a wild animal. The details of the case:
In October 2007, 83-year-old Gwyneth Williams was house-sitting for her daughter and son-in-law in their Savannah-area suburb while the couple were in Europe.
Neighbors found Williams floating dead in one of the many lagoons that dot the swampy coastal development, known as The Landings. A medical examiner determined that an alligator had bitten off Williams' forearms, her hands and her right foot. A trapper eventually found an 8-foot alligator, killed it and found Williams' body parts inside the creature's stomach.
Williams's survivors brought suit, challenging the doctrine that landowners are not liable for wild animals unless the landowner has domesticated or controlled the animals.
Thursday, September 8, 2011
In early 2010, a SeaWorld trainer, Dawn Brancheau, drowned during a public session ("Dinner with Shamu"). Among the members of the audience were Suzanne and Todd Connell and their son, who all witnessed the drowning and were, understandably, traumatized by the experience. The Connells filed suit against SeaWorld on behalf of their son (and, I think, themselves) for both intentional and negligence infliction of emotional distress.
Last week, a Florida judge dismissed their claims with prejudice, finding that they had failed to allege outrageous conduct by the park (for the intentional claim) and that they had failed to show any precedent supporting a negligence claim for purely emotional distress when the plaintiff was "a complete stranger to the injured party."
Since we're starting IIED in the next week or so in my Torts class, and the boundaries of emotional distress claims generally are a foundational theme to the class, it's a compelling set of facts for me -- and perhaps for you.
I'm trying to get a copy of the opinion and will post it here if so.
Here's the opinion: Download SeaWorldIIED [PDF].
Tuesday, August 23, 2011
TortsProf John Goldberg and Barry Friedman have written a primer on succeeding in the first year of law school. Entitled Open Book: Succeeding on Exams from the First Day of Law School, it is available here.
Here are the reviews and description:
I would definitely recommend this book. It gives great advice to students who have no idea what to expect when they take their first law school exams. --Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law
No book is a guarantor of better results, but this one would certainly help the majority of students to add points to their exam results, and some students could literally turn their performances around by following the advice of this book. --Michael D. Murray, Associate Professor, Valparaiso University School of Law
- High-profile, experienced authors from elite schools with hands-on experience teaching the majority of the courses in the traditional 1L curriculum
- Distinctive central pedagogy: the pinball method of exam-taking
- Accompanied by Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).
- Explains to students not just the how but the why of law school exams what makes law school exams different from exams students have encountered in other settings
- Detailed examples provide concrete demonstrations of exam-taking techniques
- Highly readable: prose is straightforward and humorous; key points accented with memorably amusing illustrations Not just an exam prep book; students are offered guidance on getting the most out of classes, and law school more generally.
I've glanced through the book, and it looks great.
Thursday, August 4, 2011
The element of intent in battery, assault, and other intentional torts is one of the trickier concepts to teach.
Now, via the Facebook page for the finest theaters in the land, Alamo Drafthouse, comes the story of Dale Fout and Brenda Godwin, who were both at a Dallas area theater (not the Alamo).Fout received a text and looked at it during the movie. Godwin, annoyed, tapped him on the shoulder and asked him to put it away. Fout responded...strongly, we'll say, telling her never to touch him and calling the police who, at his request, issued a citation for assault.
While you contemplate whether the facts would support a civil claim for battery, enjoy the Alamo's outstanding (if not for kids) presentation of a voicemail it received from a woman who was kicked out for texting during a movie:
Wednesday, May 11, 2011
Wednesday, April 6, 2011
Okay, actually Harvard made all the exams available, but we care about those in Torts. Here's the link. Thanks to Kyle Graham (Santa Clara) for the tip. Kyle also notes the earlier exams focused more on intentional torts than negligence, which doesn't surprise me given the character of tort law at that time.