TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, March 9, 2006

Humanizing Torts

Update: Here's a PDF of the article cited: Download DeadSorrow.pdf [PDF].

I've been thinking lately about the process of teaching Torts and what it might do to the way students (and professors, for that matter) think about injuries and deaths caused by negligence or intentional conduct.  I'd like to try to start a dialogue about what we are doing and what, perhaps, we ought to be doing, in terms of remembering the human impact of the cases we're discussing.

For proper reasons, we focus on teaching and learning the critical and doctrinal approaches to fact patterns, and put those into the context of often-wacky fact patterns.  (See my exam last fall for an example.)

Since my evening class on Monday involving Andrew McClurg's Dead Sorrow (summary here), I've had some conversations with students about it, and with Andrew as well.  Perhaps a good way to start the dialogue is to pass along some comments, first my summary of in-class discussion and second a couple of e-mails from students.

From class:

  • One student discussed the value of a bench that was created for a sorority sister who was murdered, and how it continues to help her and others, fifteen years later;
  • One student (involved in legislative politics) was surprised that nobody's at least proposed it -- as he put it, "Who would oppose it?  I'm a conservative Republican and I wouldn't oppose it!"
  • One student said one thing he kept thinking about was the likely arguing within the family and friends about what sort of memorial was appropriate;
  • One student (prior to class) said she could barely read the footnotes, they made her so sad;
  • One student was skeptical of the valuation process and of the value of a memorial in the grieving process, saying that a utilitarian memorial wouldn't have helped him in his ongoing grief over his father's death a dozen years ago;
  • One student appreciated the deeper understanding of why lawyers do what they do after deaths;
  • One questioned whether the value of such memorials would be cheapened by the sheer numbers of them.  On this one, I suggested that the memorials would largely be noticed by the people who were involved and asked if anyone could, without looking, tell me who had donated the money for the classroom we were in.  Out of 45+ students, 2 could -- one works for the corporate donor and the other has a day job doing major gift fundraising for an educational institution.
  • Speaking of the major gifts coordinator, he told us about the work he was doing before coming to the college, which was coordinating the $7 million in fundraising for a new community facility built in memory of two little girls who were killed in a car accident.  The parents donated $1 million and the balance was all raised through fundraising, and he spoke quite compellingly about the value of the process of developing the memorial for the family -- that process was perhaps as important to them as the actual result.

Now, the first of two e-mails I received:

The inclusion of the law review article in the Torts curriculum put a more human face on the study of Torts.  I believe many of us starting our law school careers are so focused on learning the material and doing well that we forget that lawyers are really part of the "helping professions."  Reading "Deep Sorrow" gives us as students the chance to step back and see the real world we will enter in a few years as lawyers. 

I personally feel that more humanizing type of material should be included in the curriculum for all law courses.  This would develop a more human race of lawyers.  Something that I feel has been lacking in the legal community as a whole based on personal experience.

Thanks for including the article as part of Torts education. 

Between your class and [another] class, last night was one of the most thought provoking I have had in school so far. 

And another:

The discussion last night was insightful.  I was talking to my brother about it (he graduated from [law school] last May) and I was telling him about the emotional impact of the law review article.  He said that his torts class really glossed over death and survival benefits and he would have enjoyed more discussion.

I remember you sayingn that it was difficult to predict how the discussion would go.  I think it was great.  Thanks for taking a chance with that assignment.  It helps remind us that these aren't just abstract cases.  These are real people with real pain.

Profs: What do you do, and what do you think about doing, to put a human face on your cases?  Do you think there's value in spending some time on efforts like this?  How much time?

Students and lawyers: What did you do in your Torts class that put a human face on the cases?  Do you wish you'd done more?  Less?  What sort of discussion would have helped?

I've used some parts from Torts Stories, which certainly provides a lot of background, but it's not quite what I'm talking about.  Similarly, I've taken some discussions out of a critical race theory book (I'm not in my office so I can't cite it precisely right now), in particular in discussing consent to intentional torts in the context of power imbalances (O'Brien v. Cunard S.S. Co., for example), and that, too, gives some useful perspective.

And while I really appreciated what happened on Monday evening, I am hesitant to do a lot more -- spending too much time talking about how the facts of the case affected the people involved could, of course, get in the way of what I think the primary goal has to be, that of teaching the law of torts.

So how should the balance be struck?  Should case books do more to introduce these concepts?  (Are there case books that already do?)

The comments field is a great way to continue the discussion, or you can send me an e-mail (wchilds AT law DOT wnec DOT edu).

(All comments above are included with the permission of their authors.)

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