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Tuesday, April 06, 2010

First Year Torts - or First Year "Injury Law"?

I'm curious to know thoughts about changing the standard first year Torts course to something a little more inclusive – and perhaps realistic. Most first year Torts courses do not teach insurance issues to any meaningful degree. Most also do not talk about other accident compensation schemes, such as worker's compensation, no-fault automobile benefits, and the like.

In today's complex world where administrative regimes and insurance loom so large over the accident compensation systems in North America, why do we hang onto the 'fiction' that there are 'pure' Torts issues? Isn't this a bit of a ruse? Doesn't insurance drive the Tort system? No pocket = no tort suit. Yet we still keep our casebooks full of doctrinal torts cases and turn a blind eye toward where the money is really coming from - insurance.

Does anyone else find this curious?

I find, more and more, I need to teach basic insurance law principles in first year Torts. Otherwise, it becomes an unsustainable fiction. In fact, one student recently described learning about insurance after half a year of Torts as a complete 'let-down.' In other words, is insurance really driving all those fun, kooky cases? Yes. Surprise.

Could we move away from a standard torts doctrine-only course - to something more like 'Compensation for Injury" in the first year?

Is not Torts but one small part of an entire system of law, with insurance and even procedural issues woven in?

I'd even dare to go so far as to say that many an academic, in working out a torts problem, tends to forget the applicability of insurance and insurability behind most Torts issues. Or is insurance just the dirty word that wrecks the fun of Torts?


Posted by Erik Knutsen on April 6, 2010 at 05:53 PM | Permalink


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I've been practicing personal injury law for 30 years and we've never referred to it as tort law because of what you've pointed out. A client walks in with a personal injury not a tort. The client's problem is one of compensation; any more the lawyer's challenge is to know where it starts and where it will end. We look to an auto policy and we have issues of casualty with the at-fault driver's auto insurance. With our clients it's filing under the medical pay and under their health insurance policy (subrogation issues); then it's putting the insurance company on notice of potential underinsured or uninsured motorist insurance claims. If they are going to be off of work for longer than a year there is the issue of Social Security benefits. If they have a disability policy we need to consider long or short term disability and how that might affect any other claims. If the client was injured within the scope of employment the lawyer's job is to make sure the case is being handled in a way that makes it viable under the workers' compensation act of the client's state. And let's not forget credit disability issues so the bills can get paid. With all of that in the works we must be thinking long term about subrogation, liens and of course social security set-off issues. Within the policies of insurance can be different statute of limitations requiring an earlier suit filing date, notice provisions and of course attempts to create liens.

I can't talk from a lofty perch only from the trenches. We are fond of saying that law school professors teach you how to think about the law, but the practicing lawyers teach them how to practice law.

Posted by: Steve Lombardi | Apr 12, 2010 8:38:26 AM

I recall studying no fault in tort law, but worker's compensation was taught in an employment law course, and insurance law wasn't taught at all.

There is merit in teaching a course in "personal injury law," but only if the curriculum transfers other torts, to some combination of constitutional law and a comprehensive "commercial law" course that would teach not just contracts, but business torts like tortious interference with contract, misappropriation of business opportunity, the privacy torts, etc.

Posted by: ohwilleke | Apr 8, 2010 2:37:01 PM

I talk about Insurance Law from the first day of Torts to the last. It and Tax Law are the "invisible forces" which explain many odd business transactions and law suits. It comes up immediately in discussions of why plaintiffs are often left without a remedy when the defendant is found liable for an Intentional Tort rather than Negligence. Studies in American Tort Law by Vince Johnson and Allan Gunn does a good job of pointing out these issues. My prediction is that most people cover this to some extent, but especially in a one semester course, it's hard to imagine doing justice to the role of insurance in U.S. litigation.
All that said, it is odd how we compartmentalize subjects--especially civil procedure--when it is more likely that a real dispute will involve several different causes of action.

Posted by: Jennifer Bard | Apr 8, 2010 12:34:08 AM

Thanks for the provocative post, Erik. Liability insurance surely deserves some attention in 1L Torts. So does first-party insurance. And procedure. And risk-regulation. And contingency fees. And workers' compensation. And .... Yes, law is "holistic." The pedagogic question for Torts obviously concerns what students ought to learn in their Torts class, keeping in mind that they will be taking lots of other classes where they will be learning about other subjects, including some of the ones identified above. If there is a weakness in the teaching of Torts today, I would guess it lies at least as much in the failure to attend adequately to basic substantive tort concepts as in the failure to address the 'practicalities' of insurance etc. There's a lot more to learn about tort law than the difference between strict liability and negligence, or the pliability of concepts like reasonableness, foreseeability, duty, and proximate cause. Tort is a particular kind of law, that aims to do something distinct from contract, insurance, risk-regulation, etc., even though it at times draws on these other bodies of law. We should do our best to make sure our students really understand Tort law on its own terms. Sorry to go on and on ....

Posted by: J Goldberg | Apr 7, 2010 5:13:26 PM

This was a surprising post to me, as all three sections of my 1L class included significant material on worker's comp and at least (varying by instructor) an introduction to insurance issues. There was, however, one thing in common: All of that material was found in supplements, not the casebooks.

Maybe, then, the problem is with the commercial offerings available to support teaching the course, not with instructor intent. (And with the way the bar exam "tests" tort law, which influences the syllabus at more schools than would admit to being influenced by it.)

Posted by: C.E. Petit | Apr 7, 2010 11:06:35 AM

I must have been lucky then to have Ken Abraham teaching my 1L Torts class. He not only taught torts highly effectively, but also included teaching fundamentals of insurance (for obvious reasons given his status in the torts and insurance fields) and placed those two within the larger "forest" of possible compensation schemes. That way, we (as students) could see that these were not the only or even the primary possibilities.

Posted by: UVA 2L | Apr 6, 2010 8:16:53 PM

I believe that Bob Jerry, the Dean at Florida, co-authored an article in the St. Louis University Law Journal a few years ago suggesting that teaching torts without an insurance component was undesirable. Dean Jerry is, of course, a leading insurance law scholar.

Posted by: Doug Richmond | Apr 6, 2010 7:17:38 PM

Huh, first anon - I just came here to comment the same thing. I remember his class covering all the issues mentioned here pretty comprehensively and his case book was probably the clearest I used in any law school class. (I was surprised that other classes didn't seem to use it.)

Posted by: anon | Apr 6, 2010 6:51:26 PM

Lew Sargentich at Harvard does an excellent job incorporating both auto no-fault and worker's comp into his torts class, which was among my favorite classes in law school. His textbook (with Keeton and Keating) is actually called "Tort and Accident Law," which captures the broader approach he takes. It's a great book.

Posted by: anon | Apr 6, 2010 6:20:23 PM

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