Friday, August 20, 2010
First Day of Torts
My first day of Torts is on Monday, and despite the fact that I'm teaching it for my fifteenth or sixteenth time, I'm still anxious about setting the right tone and pitching the material at the right level for the new 1Ls. I try to cover a variety of topics at some point in the first week, including what a tort is, what tort law is supposed to be for, alternatives to the tort system, what common law is, the various levels of courts in the American system, stare decisis and the hierarchy of authority, the limits of studying appellate decisions, what it means when you say "jurisdictions vary" and why there is no unified law of torts for the entire United States, how to tell if an authority is binding or merely persuasive, the "broad brush" differences between torts and crimes and between torts and contracts, and little about the historical development of tort law. I also discuss, of course, trial court procedure, the importance of identifying the procedural posture of the case, what "elements" are and how to identify them, and what Restatements are. That's a lot to try to do in the first few days, isn't it? I don't assume that the students will master all of these topics. Instead, I try give them the basic knowledge they need to read a case and to introduce themes and concepts that I'll refer to throughout the course. One of the main ideas I try to introduce is that there are types of arguments that are distinctively recognizable as "legal," and throughout the course, I try to teach students to recognize and reproduce those arguments. The article that most influenced the way I teach Torts was James Boyle's Anatomy of a Torts Class. In the past I tried assigning it at the beginning of the semester, but I've found the students really aren't ready for it then. Incidentally, I love the eagerness of 1Ls, even though 1Ls are much more "high-maintenance" than 2Ls and 3Ls. My own 1L experience was one of the most intellectually invigorating of my life, and I always hope I can "pay it forward" by making the 1L experience equally invigorating for my students.
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That sounds like it's really helpful to a first year law student. I don't think anyone EVER covered any of those topics in my three years of law school (in any class). My first class went something like this:
1. Professor X has one foot in the door. Prof. X: "Student A, please stand up. What were the facts in Case 1."
2. Student A struggles badly with Case 1, including being unable to explain the case's citation (and why would he?).
3. Repeat with Student B/Case 2.
4. Prof. X: "My name is Prof. X, welcome to torts." Prof. X abruptly exits the classroom.
Posted by: Jeffrey Lebowski | Aug 20, 2010 11:16:25 PM
you know I'm thinking nowadays most of this kind of background is covered in legal rhetoric and its a little repetitive for you to go into it. plus i think a lot of students today come to law school with more background on the law then they did decades ago, from being law office slaves prior to school or just from wikipedia and blogs the like, (at least I did) and i found it somewhat boring to hear all this stuff again and again my first week in each class.
Posted by: guy | Aug 21, 2010 10:53:01 PM
Guy, I do worry about some of it being too basic, but students come to law school from such a wide variety of backgrounds that a significant portion of them seem to really need it. It is always a balancing act: you never want to teach to the level of the least informed students in the class, but you don't want to leave half the class behind, either. My solution is to have each of the introductory classes have a mix of basics with some difficult doctrinal and jurisprudential questions. That way, at least if some of the students are bored, they probably aren't bored for the whole hour. But, as I said, it really is a balancing act, and one that needs recalibrating from time to time. I try to be flexible enough that I can abandon a topic or speed through it if it seems like everyone is "getting it."
Posted by: lyrissa | Aug 21, 2010 11:36:21 PM
Posted by: guy | Aug 21, 2010 11:42:20 PM
One of the things we discuss in our book on law school teaching is to "do some law school" on the first day.
We also suggest that, as a general proposition, it is hard for students to process too much historical or theoretical material before they have seen actual cases. Some amount of "table setting" and theme identification is good; if there is too much it is wasted. Some of the procedural things can be developed as asides to the first few cases.
I have enough intro material to fill more than one full class - I talk a lot about the analytical process - but I make a point of breaking it up over the first few days. Regardless of where I am in the intro material, a half hour into the first class we move on to the first case, and then come back to intro material the next class.
Posted by: Howard Katz | Aug 22, 2010 1:01:49 PM
Howard, I agree about "doing real law" early on. It is one of the reasons I like to start with battery and particularly the case of Ghassemieh v. Schafer. It allows you to sneak important "digressions" into what looks like a simple discussion of the case. Unfortunately I'm using a book this time that doesn't lead with Ghassemieh. I'm supplementing it, which is not something I like to do in the first week, but I felt I had no choice.
Posted by: lyrissa | Aug 22, 2010 4:08:41 PM
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