TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, September 21, 2009

Guest Blogger Mike Rustad on "Unstuffing the Dog: Training Better Attorneys by Introducing Real-World Concerns in the Teaching of Torts"

Value-neutrality was a term coined by Max Weber, a founding father of sociology.  Weber contended that sociologists should be apolitical, objective, and avoid injecting ideological assumptions into their teaching as well as their research. Weber’s preference has gained widespread acceptance in the academy community.  One would think that Max Weber’s approach to research and teaching would compliment a scientific approach.  In other words, a scientist makes evaluation only after testing hypotheses.  Max Weber’s approach, which reminds one of the highest ideal of a scientific method, is a laudable goal for legal educators to embrace. 


It is not surprising that Christopher Columbus Langdell, the founding father of the case method in law teaching, capitalized on the contemporary scientific methodology.  But, in reality he distorted the scientific approach by using the deductive rather than the inductive method of collecting and classifying cases.  Langdell’s casebook assembled appellate opinions devoid of values and context.  His approach was ideological, rather than value-free, because of its overemphasis on judicial opinions as opposed to looking at the broader picture including values, public concerns, and sociological factors such as race, gender, and class.  In effect, Langdell created a legal pedagogy that was one-sided or ideological in nature and it continues in the modern law school classroom.   While we may all agree that appellate opinions are important, courts always decide cases within a larger political or sociological context.  The narrowness of conventional case analysis strangely overemphasizes rules of law over empirical facts.


In an intentional infliction of emotional distress case, for example, the plaintiff’s race or age is highly relevant to the question of whether the defendant’s actions were outrageous.   Race is relevant to whether an employer who targets an employee with racial epithets.   Race, gender, and class often are relevant in judicial opinion, but seldom mentioned in the text of an appellate case.   Similarly, gender is often important in understanding awards for non-economic damages or pain and suffering.   Reproductive injuries, for example, disproportionately impact women.  Caps on non-economic damages, for example, will impact women more than men in nursing home cases because of women's greater longevity.    In any respect, it is a laudable goal to approach a subject scientifically.  Science advances through replication and verification of research hypotheses.  However, the scientific approach in tort law should also test hypotheses about the impact of class, race, gender, and other contextual variables in judicial decision-making not just the judge’s words.


Langdell and his followers adopted the case law method, which distorts the inductive goals of science.   Langdell created an ideology of his own that has ruled American legal education ever since.     It is ideological to exclusively focus on appellate opinions without considering context and values.    Roscoe Pound once compared the exclusive focus of American legal education on appellate opinions to a school of veterinary medicine concentrating on stuffed dogs versus the real thing.  Teachers only using appellate cases “are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs." Jerome Frank, Why Not A Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 912 (1933).


The goal of the scientific approach in tort law is to test ideas rigorously and communally by considering diverse public policies and values   Classical liberalism, à la John Stuart Mills that brings all arguments to the table for a complete discussion, advances the scientific approach by engendering creative and critical thinking.


In the United States, the liberal bent of most tort casebooks is more parochial than John Stuart Mill’s approach.   In order to attempt to teach in a value-free manner, one must expose the students to a wide range of approaches.  A combination of creative and critical thinking with knowledge of different schools of thought makes for a better practicing attorney.   In the course of attempting to teach in a neutral fashion, it is more than acceptance to acknowledge that you have your own preferences based upon your research.  Nevertheless, you want to be consistent about familiarizing the students with other schools of thought and other approaches even from other disciplines.  Nearly fifty years ago, Leon Green described the deadly clutch of funneling tort law through a single doctrinal perspective:  “This does not call, however, for the flight from doctrine to the heaven of policy making.”  Tort Law:  Public Law in Disguise, 38 Tex. L. Rev. 257, 269 (1960).  In other words, the tort teacher needs not abandon judicial opinions but they do not need to weigh conflicting policies.   William Prosser introduced the 1964 edition of his famous treatise by describing tort law as a “battleground of social theory.”   The battleground of competing camps challenges the comfort zone of conventional tort teaching.  Today tort teachers are “assaulted from any number of directions by antagonistic perspectives?”  (Robert Rabin, Law for Law’s Sake, 105 Yale L. J. 2261, 2261 (1996)).   Rather than retreat to the deadly clutch of doctrinalism, teachers should use contemporary debates to explain the path of tort law.


Keith Hylton’s recent guest appearance on this blog asks whether tort law is economically efficient.   Key law and economics concepts such as opportunity costs, prices, incentives, efficiency, and externalities are value-laden.   The minimization of accident costs advance a societal interest in efficiency or the economic welfare of society.   Keith describes teaching judges at the Brooking Institute and how they accepted the “efficiency perspective” when he presented it to them.  He found this receptiveness surprising given that there is little empirical evidence demonstrating the efficiency of tort law.   Keith does more than funnel ideas and materials through an economic prism, but also calls for empirical studies to verify the efficiency hypothesis.   His call for more data is consistent with the Weberian tradition.  Keith’s approach enriches his student’s education and training.


As John Goldberg has noted, tort law is now fractured into competing camps:  “compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice, and individual justice."  A student being prepared for law practice is ill-served by not explaining competing public policy concerns underlying tort decisions.   Jamie Boyle’s articleon teaching first year torts describes the limits of the doctrinal approach: “The first thing that I discovered as a teacher was that, not only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching….I came to believe that not only is this exclusion unjustifiable, it is actually politically slanted—it denies us access and place in which most of the implicit messages about professional culture, legal ideology, and technical skills are really being transmitted.”  Presenting and weighing alternative perspectives to values implicit in court decisions can help students develop critical lawyering skills.  Anita Bernstein contends that competing perspectives such as law and economics, feminist theory, statistics, sociology and political theory are tools to help law students become better lawyers.  Critical race and feminist theory can help students see race, class, or gender implications in tort doctrine.  (See Katz & O'Neill, Strategies and Techniques of Law School Teaching).   While law students needs to grasp the black letter law, the modern practitioner need to master competing perspectives to be prepared.


Over the past few years, I have placed an increased emphasis on competing perspectives in teaching the first year torts course.  Stephanie Wildman and I were asked to join the Fourth Edition of the Jerry Phillips’ torts casebook, Tort Law:  Cases, Perspectives and Problems.   Our introductory chapter introduces six competing perspectives on tort law for the students to consider.  “We were inspired in part by Julie Davis’ presentation at the 2003 AALS Conference on Tort Law.   Julie proposed that we consider using multiple perspectives in the first year class to overcome the anti-tort resistance of first year law students.  She described the difficulties of teaching first year students who came to the course with deep biases against plaintiffs and their attorneys.  The cultural motif of tort reform makes it difficult for law students to see both sides of cases."


To introduce the perspectives, I take the students on a theoretical “fly-over” by surveying the broad outlines of law and economics, corrective justice, critical race theory, critical feminism, pragmatism, and social justice.   On the first day of class, I asked my tort students to fill out a brief questionnaire about what they knew about the famous McDonald’s hot coffee case.  Most students view the hot coffee case as a poster child for tort reform.  Most students do not even appreciate the severity of the plaintiff’s injuries.  In our casebook, we discussed the McDonald’s litigation to showcase how lawyers for each side could employ the six perspectives to advance their argument.   During the first week of class, I ask students to apply these six tort perspectives if they were counsel to the McDonald’s Corporation and the plaintiff:  law and economics, corrective justice, critical face theory, critical feminism, pragmatism, and social justice.


While the McDonald’s hot coffee is known by nearly every entering student, few know that the injuries were severe and that McDonald’s own records demonstrated more than 700 prior complaints arising from super-heated coffee.    I use the perspectives to help students understand the McDonald’s coffee case as a problem from a plaintiff’s perspective and the defense perspective.  It is a concrete fact pattern to give the students practice in applying legal arguments.  I ask students, for example, how they would use law and economics concepts if they were representing McDonald’s corporation.   McDonald’s sold billions of cups of coffee and registered only 700 complaints.  Does efficiency dictate lowering the temperature to redress only 700 consumer injuries out of billions of cups of coffee?   Most law school classes will have students with training in neoclassical economics and be able to make efficiency-based arguments as to whether McDonald’s should not be subject to liability.


Next, I flip the law and economics argument and ask how lawyers for the plaintiff would use economic arguments to advance their side of the case.  A law and economics oriented court might ask whether McDonald’s burden of precaution exceeds their costs of injury avoidance.  The plaintiff might counter this argument that the 700 prior reported injuries greatly underestimates the magnitude of the risk because many unreported injuries due to the superheated coffee may have likely occurred.  Students are asked about the punitive damages in the hot coffee case and whether they promote economic deterrence or not.   The perspectives help students isolate legal issues and give them practice resolving issues from different vantage points.


The theory of corrective justice requires that the party at fault makes the victim whole.  The defense view of corrective justice is that Mrs. Liebeck was the primary cause of her own injury.  From a plaintiff’s perspective, corrective justice was served by the jury finding of contributory negligence that required the defense to right only the wrong it had caused.    In this chapter, we also applied critical race theory, critical feminism, pragmatism and social justice to this pop tort case.   Students who were initially anti-tort came to see both sides of the case.   I had several students who were pro-plaintiff convert to the defense side.


Another point of applying perspectives is that students will understand that true value neutrality is not possible.  Tort arguments reflect values and context.  To quote Weber, “Expect the impossible in order to achieve the possible.”   The value of multiple perspectives is best expressed by Chris Robinette’s application of the parable of the three blind men to tort scholarship: “Much of contemporary torts scholarship reflects the problem of the blind men in the parable:  an exclusive focus on one aspect of the object of study and a concomitant failure to acknowledge the validity of competing perspectives.”   The competing perspectives approach affords professors an opportunity to demonstrate that tort law reflects larger public policy debates.  It also gives students an appreciation of the policies upon which tort rules are grounded.   A growing number of law professors, such as Jennifer Wriggins, believe that we should teach context as well as the larger jurisprudential or philosophical framework of tort law.   


What do you think about this multi-paradigmatic approach?  What are the key competing perspectives?  Have you tried it in your classroom?  I look forward to learning from you.


Michael L. Rustad

Hugh C. Culverhouse Visiting Chair

Stetson University College of Law


After 2009-2010

Thomas F. Lambert Jr. Professor of Law

& Co-Director of Intellectual Property Law Program.

Suffolk University Law School

*Acknowledgment:  I appreciate the editorial suggestions of Patrick McCardle, a first year student at Stetson University College of Law.

Guest Blogger, Teaching Torts | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Guest Blogger Mike Rustad on "Unstuffing the Dog: Training Better Attorneys by Introducing Real-World Concerns in the Teaching of Torts":


I hope you explain that McDonald's "super-heated" coffee is at the same temperature as Starbucks, Dunkin Donuts, and high-end home coffee brewers. Or at least expose the students to McMahon v. Bunn-O-Matic or In re Bogle, where the courts did not make the legal errors made by the New Mexico court in Liebeck.

Posted by: Ted Frank | Sep 26, 2009 9:04:57 AM

"Super-heated" doesn't mean what you seem to think it means. 190-degree coffee is hot, but not "super-heated." McDonald's coffee is at the same temperature as Starbucks, Dunkin Donuts, and high-end home coffee brewers. I hope your students are exposed to McMahon v. Bunn-O-Matic (where a law-and-economics judge actually evaluates a hot-coffee case) or In re Bogle, where the courts did not make the legal errors made by the New Mexico court in Liebeck.

Posted by: Ted Frank | Sep 26, 2009 9:17:26 AM

Post a comment