A Torts Course for the Actually Existing World

John Fabian Witt –

The torts classroom is like a dystopian historical fantasy.

Or maybe a kind of morbid historical science fiction. Students and teachers gather to rehearse time-honored rituals around the Great Cases of human tragedy: Scott v. Shephard, Brown v. Kendall, Rylands v. Fletcher, Vosburg v. Putney, Leroy Fibre v. Chicago, Milwaukee, & St. Paul Railway, MacPherson v. Buick, Murphy v. Steeplechase Amusement Co., Palsgraf v. Long Island Railroad, and more. The cases tend to be old. They tend to involve railroads. We conjure up a bygone world on the rails or at old-school amusement parks, in coal mines or at small-town markets. We conjure a world of judges, juries and appellate opinions, too. But in the actual world outside the torts classroom, railroads have been in decline for a half-century and more. Amusement parks, too, though that’s a story for a different day. More importantly here: so have judges, juries, and appellate opinions. The spread of waivers, the rise of arbitration, the disappearance of the trial, and the prevalence of settlement have made the Great Cases almost literally things of the past.

What would it mean to bring the torts class into the twenty-first-century and connect it to actually existing problems?

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American Tort Law Tells Us How It Really Feels About Law and Economics

Anita Bernstein —

Funny thing about the intersection of tort and law and economics. For decades this school of thought has been ascendant in scholarship and intellectual understandings of this field, as it has throughout private law generally. No one can teach or write competently about torts without giving thought to law and economics fundamentals like cost-benefit analysis, cost as a social problem, the cheapest cost avoider, default rules, incentives, and wealth maximization.  On the one hand.

On the other hand, American tort law as practiced will stick a thumb in the eye of law and economics. Rather than defer to familiar microeconomics tenets taught in classrooms and quoted for truth in law reviews, it often refuses to learn the curriculum, disrupts order, and even refutes a few basics by not cooperating with their premises. It is worth cataloguing a few examples of these resistances:

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Torts: A Law and Political Economy CounterSyllabus

This syllabus is, in conjunction with the framing post on the Law & Political Economy Blog, a starting point for understanding the law and political economy approach to torts. The initial readings introduce both the law and economics perspective and the competing law and political economy perspective on tort. Subsequent portions of the syllabus use existing literature to apply the law and political economy perspective to concepts featured in tort classes, such as injury, proximate cause, and negligence. Given the newness of the law and political economy perspective, this syllabus is a work-in-progress: email any suggested readings to Conor Dwyer Reynolds at conor.reynolds@yale.edu. Download the full syllabus here.

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Rules of Power & Wrongs: A Law & Political Economy Approach to Tort Law

Conor Dwyer Reynolds —

The law and political economy perspective is defined by its focus on power, the ability to control and change things (especially people). From the vantage point of law and political economy, courts, markets, legislatures, and all other institutions can and must be assessed in terms of how they create and distribute power. Because power exists within and among people, the function of an institution cannot be grasped by simply looking at its formal structure, the words that define its constitutive rules. This is why, as Michael A. Wilkinson and Hjalte Lokdam have noted, the law and political economy perspective demands that institutions be seen through “a historical, conceptual and interdisciplinary lens.”

That lens may help students running through the confusing maze that is many first-year torts classes. Tort law is made up of a hodgepodge of liability rules, running from the apparently criminal (false imprisonment) to the vague (nuisance) to the obscure (abnormally dangerous activity) to a dog’s name with a t on the front (trover). The judicial opinions assigned to illuminate these rules are often written in dense, arcane legalese. If students manage to distill a judge’s reasoning from these opinions, what they often discover are idiosyncratic justifications that do not seem to hang together as a cohesive, intelligible whole.

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Raze and Rebuild the Property Course

James Grimmelmann

“Certainly if we view the common law on the eve of reform, we see the spirit of Heath Robinson at his most extravagant. … It is a real question why nobody before Bentham was provoked, and a part of the answer is that nobody before Blackstone described the system as a whole.”

S.F.C. Milson, Historical Foundations of the Common Law xii (1969)

It is impossible to speak critically about a disorganized mess, except in one of two unsatisfying ways. One can point out a detail here or there that seems exceptionally out of joint, or one can gesture uselessly at the whole awful heap and suggest in vague terms that perhaps it ought to be scrapped and replaced with something better. Real reform requires real understanding.

The traditional organization of the first-year Property course is an affirmative obstacle to comprehension. It starts with an act of misdirection, encouraging students to think that property law is only about houses and land, please pay no attention to the vast amounts of abstract wealth sloshing through the financial system. It continues with a protracted tour of the Museum of Doctrinal Arcana, featuring such exhibits as the distinction between remainders vested subject to open and remainders vested subject to complete defeasance.

It is not that it is hard to find interesting political angles in this tangle. From “first” possession to permanent physical occupations, the use and abuse of power is everywhere in the course. A skilled teacher who wants to bring out progressive themes can do so in every class. So can a skilled teacher who wants to emphasize economic analysis, or the choice among institutions, or the long shadow of history. (Teachers gonna teach, teach, teach, teach, teach, teach.)

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The Property Course as Critique

Justin Desautels-Stein

I wasn’t at all sure what to do after I was first asked to teach 1L Property Law. Not only was it an unexpected addition to my courseload, my background was in legal history and critical theory on the one side and in international law on the other, and the idea of picking up a first year private law course, just a couple years before going up for tenure, seemed crazy. Some colleagues suggested a copy and paste method for teaching the course: “Just grab a syllabus from someone you respect, assign their book, and stay one or two classes ahead of the students.” At first this seemed like the way to go. It would certainly save time and allow me to focus on my tenure pieces. But once I started reading the syllabi closely, the random doctrines seemed to beg for a narrative, and as it happened, I was already at work on just such a narrative in the history of American Legal Thought.  It was a narrative that I had been developing within a broad project to revitalize the first wave of critical legal studies (circa 1975-1984). Thankfully, I had some very helpful (and certainly critical) support from veterans Kristen Carpenter and Dan Ernst, and the eventual result was a Property Law course developed out of my critical legal studies perspective on legal history. More broadly, it was this approach that also ended up working itself into what became a book, The Jurisprudence of Style (“JoS”). My explanation here about how I came to teach property “from the left” will draw heavily on that book, which is largely a history of law and political economy in the United States from a structuralist point of view.

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Zoning and Race, from Ladue to Ferguson

Rebecca Tushnet —

When James Grimmelmann, Jeremy Sheff, Mike Grynberg, Steve Clowney and I decided to write an open source property casebook that could be shared freely with students, one of the benefits was the ability to teach the material in ways that made sense to us. The mortgage chapter, for example, is actually the “foreclosure” chapter: it focuses heavily on the foreclosure crisis of the past decade. In contrast to the casebook I used to use, it asks why lenders issued terrible loans rather than asking only why borrowers took terrible loans. Likewise, most casebooks call the topic of initial ownership “acquisition”; we call it “allocation” to emphasize that there are rarely resources that don’t lend themselves to a conflict over initial ownership.  (Not unrelated to our general orientation towards the topic, we rely on fair use for some of the material we quoted, which traditional publishers often don’t allow no matter how strong the fair use case is.)

We also tell a different story around zoning than most casebooks. Our chapter on the topic, which I wrote, explores how zoning works in practice, with a particular focus on how it is used to create and reproduce racial hierarchies. As part of this approach, we include actual zoning codes and maps, which is surprisingly uncommon in the casebooks I looked at before writing this one. (There’s a slightly more standard version of the chapter for those who don’t want to spend multiple classes on zoning.)

To keep things concrete, our casebook focuses on St. Louis. St. Louis proper is one of the most segregated cities in the country, and its surrounding county is likewise highly segregated. Zoning in and around St. Louis is illustrative of issues that recur across the country. Examining zoning laws from this area allows the chapter to illustrate how property regulation in the US is, to a first approximation, always about race.

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The State as the Foundation of Property

Ezra Rosser —

A few years ago, I set out somewhat deliberately to publically out myself as being at the far left extreme when it comes to property law scholarship. I attacked progressive property scholarship from the left and attacked information theorists as rationalizing the status quo. So perhaps it is surprising that my 1L Property class is a fairly standard, establishment-type class. Given the vaguely progressive bent of most of my students, I find that doing so forces them to think harder (and, as Jed Purdy notes, we do have an independent obligation to prepare students for the bar exam). Indeed, early in the semester I do a lot of work encouraging conservative and libertarian students to be active participants in the class. Though their peers may not change their minds, having a critical mass of vocal conservatives or libertarians in the classroom forces the rest of the class to be more careful when they make arguments and more critical about even matters of progressive consensus.

But I do subtly introduce critical perspectives throughout the semester. In particular, the emphasis I place on the state provides space for students to question existing property rules and to recognize the malleability of those rules. Though I resist directly telling students that one of the main things I want them to get from the course is an appreciation for the role the state places in creating, defining, and protecting property rights, throughout the semester I emphasize the singular importance of the state.

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But Who Gets the Driveway? Teaching Property as LPE (Sort of)

Jedediah Purdy —

I wrote a lot about Property between 2005 and 2010. I came to the topic as a new law professor because it struck me as something like constitutional law for the economy: the basic arrangement of power, cooperation, and legitimacy. The writing I did then was about how property law creates the terms on which people cooperate. By allocating the resources we all need to live, act, and pursue our projects, it sets up the scope of options and the bargaining power between, say, an investor and an entrepreneur, a business owner and an employee, a homeowner and an undocumented worker doing yard maintenance. The distribution of control over resources is also the distribution of control over lives—one’s own and others.’ It empowers people and, by the same token, makes us vulnerable to one another’s demands.

Property law is often taught as a kind of elementary version of the theory of voluntary market cooperation generally: without ownership, we would fall into the tragedy of the commons, but with it we achieve both economic efficiency and autonomy-respecting uncoerced collaboration. I was interested in the underbelly of this theory: how the ideal landscape of free cooperation is in fact terribly uneven, marked by towers of wealth, highlands of security and capacity, and full of vulnerable lowlands, populated by people who mostly find they have to take what they are offered. The point was critical but also reformist—to look for places where different regimes could make the terms of cooperation more genuinely equal, which ideally would require people to enlist one another’s energy by appealing to their wishes more than to their fears—to make “an offer you can’t refuse” a slogan of joyful acceptance rather than unshakable threat. If the usual utopia of Property is Ronald Coase’s frictionless allocation of all resources to their wealth-maximizing uses, regardless of distributional results, I wanted to introduce an alternative utopia of truly voluntary cooperation, focused not first on the use of resources, but on the shape and tone of the human relationships that arise from a pattern of control over resources.

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Rethinking Criminal Law

Jocelyn Simonson and Amna Akbar —

Energized and challenged by the rise of powerful grassroots movements in the wake of the Ferguson and Baltimore rebellions, law professors are rethinking how to teach first-year Criminal Law. At the Law and Society Association annual meeting this summer, Alice Ristroph convened a group to ask “Are we teaching what we should be teaching? . . . Might the path to criminal justice reform begin in, or at least run through, the classroom?” During a Criminal Law Casebooks session at the 2017 AALS Mid-year Meeting/CrimFest, Prof. Cynthia Lee–coauthor to our fellow LPE contributor Angela Harris–highlighted the need to bring more critical perspectives into Criminal Law. These are but two recent examples of many conversations formal and informal. What should we be teaching future lawyers about the history, causes, and solutions to mass incarceration and the on-the-ground experiences of people interacting with the criminal process?

Our engagement with these questions led us to co-write the Guerrilla Guide to Teaching Criminal Law in August 2016. The guide was itself part of our larger project, described in an earlier post, of reimagining law school discourse in the “movement moment.” The Guerrilla Guide to Criminal Law discusses a range of tactics to disrupt the standard fare criminal law discourse, from introducing theories of abolition (or alternatives to criminal law, policing, and incarceration for dealing with deep-seated social problems), to the inclusion of voices and experiences from directly impacted people and the movements that represent them, to changing the very topics that the course covers, for example by eliminating some traditional subjects in favor of units on drug crimes, police violence, or criminal law reform debates.

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