Tuesday, September 12, 2006

On Teaching 9/11

All of us who teach subjects such as torts and mass tort litigation have likely this week considered our special responsibility and opportunity to discuss in class the terrorist attacks of September 11, 2001.  Apart from being the catalyst for two wars and radical changes in American and international political life and culture, the attacks of September 11 were also a mass tort that took without warning the lives of 2,973 people, many of whom left behind deeply traumatized families.  In addition, a recent study concluded that nearly 70% of those who worked at Ground Zero after the attacks now suffer from respiratory ailments, and the death of a New York police officer has been determined to have been caused from his inhaling toxic dust at the site after the attacks.

Although we are teachers of cases involving personal injuries, 9/11 poses particular challenges as a topic of classroom discussion because our students', and our own, emotional wounds may still be unhealed.  For those of us who were in or around the attack sites in New York, Washington, or Pennsylvania, or who personally knew victims, undertaking such discussions may be more difficult still.  On the morning of September 11, I sat in disbelief looking at the burning Twin Towers from my office window in Times Square in New York and saw the first tower fall.  That event, and the difficult period that followed -- learning of neighbors who had died and trying to resume life in the tumult that followed in New York -- made me reluctant to discuss 9/11 in class.

Nevertheless, I believe discussing 9/11 in class is worth navigating such emotions.  Of course, 9/11 provides a lens for discussing tort concepts, goals, and alternatives.  For example, my torts class, after initial hesitation, leapt into analyzing potential claims for intentional torts and negligence stemming from the attacks.  We then discussed why Congress created the 9/11 compensation fund, rather than simply defer completely to traditional tort litigation, and talked about the extent to which the 9/11 fund effectuated tort goals.  In my mass tort litigation class, we also discussed the reasons why 9/11 tort solutions may or may not be possible for other mass torts.

But as important, 9/11 also provides an opportunity for students to see in their own pain a shared humanity with the type-faced tort victims who populate our casebooks, and with bystander victims of emotional distress, whose suffering the tort system for many reasons has been reluctant to recognize.  I recall Judge Guido Calabresi saying that he saved such identification of the student with the victim for the last day of his torts class, because a measure of distance and humor are essential if the class is to discuss such serious personal injuries throughout the course.  I share Judge Calabresi's fondness for humor and professional distance in discussing tort cases, and recognize the risk of personalizing too closely the cases we read.  But surely the significance of 9/11, for torts in particular and our society generally, is worth taking that risk.

I welcome comments anyone might be interested in posting with their thoughts on, or approaches to, discussing 9/11 in law classes.


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I've found the Sept. 11 Victim Compensation Fund a powerful teaching vehicle because it gets students to think outside the box of tort law. It forces students to think about decoupling deterrence and compensation, as well as about the difficulties of determining just compensation. Last year, my Torts students read about the 9/11 Fund as the final reading assignment of the course, and I thought it made an effective ending. In Complex Litigation, I had my students read Feinberg's Final Report as special master of the fund, and it led to a wonderful discussion comparing the handing of 9/11 with how most mass torts are addressed.

But to Byron's more fundamental question -- whether we use the emotional power of the 9/11 trauma as a teaching tool -- I don't. It's not that I'm unwilling to open wounds, if I think there's a sound pedagogical reason for going there. But Torts students need to learn to empathize with the pain inflicted by the slings and arrows of everyday existence, not merely the pain inflicted by major disasters. It's in the everyday torts case where we've got the serious teaching challenge of making sure our students get into the plaintiff's shoes, and the defendant's.

Posted by: Howard Erichson | Sep 13, 2006 8:53:35 AM

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