My Fall 2009 Torts Class:

I've finally finished my syllabus and supplemental readings for the Torts class I'll be teaching this Fall; if you want to take a look, it's here. I try to create pretty detailed syllabuses for my first-semester students, in which I discuss the pedagogical goals for each unit and often pose questions or give background information; that ends up being about a page per unit, which together with the supplemental readings and some preliminary materials means I've had to produce 104 pages. A lot of work up front, but I think that it pays off during the semester.

In any case, I thought I'd mention what we'll be covering. We'll begin with trespass, and the defense of necessity. We'll go on to negligence, causation, strict liability, product liability (which is partly strict liability and partly negligence), and nuisance. We'll do damages, contributory and comparative negligence, and assumption of risk. We'll then cover intentional infliction of emotional distress, intentional interference with contract, intentional interference with prospective economic advantage, alienation of affections and criminal conversation, disclosure of embarrassing facts, and the right of publicity.

That's a lot of coverage, but the class is 5 units (i.e., 250 minutes per week) and runs 14 weeks. The readings thus end up being only 6 to 7 pages per unit, pretty modest as law school readings go. And I hope it gives students exposure to a wide range of concepts and principles that arise routinely in tort cases, including business tort cases and not just personal injury cases. (If I had still more time, I'd have liked to include some of the falsehood-based torts, such as fraud, negligent misrepresentation, and trade libel.) If you're curious, check out the syllabus.

UPDATE: Note that the view at UCLA is that our classes aren't primarily aimed at preparing students for the bar, though we hope that the concepts and skills we teach will help them on the bar. Likewise, while we tend to focus on areas that are practically important -- which is why I don't include battery, for instance, but I do include the interference with contract and business relations, as well as the basic negligence and strict liability cases -- that isn't our only goal.

Rather, we will sometimes (1) include a topic that is a good vehicle for exposing students to certain concepts or policy arguments, even if it's not that practically important, and (2) not include a topic that is practically important but that uses concepts that we think are covered well elsewhere, and that practicing lawyers can therefore easily pick up on their own. Plus we'll sometimes cover some fields just because we think they're especially likely to excite students and thus produce an interesting class discussion of the broader issues.

That, for instance, is why I haven't included conversion, but included alienation of affections (which in case takes up less than one day). As to libel, my worry is that it would take too long to cover it adequately, plus much of it is covered in most First Amendment law classes. I've therefore decided to cover the communicative torts via the right of publicity and the disclosure of private facts tort, which are more manageable, and which also involve live current policy debates among the courts in a way that libel law doesn't.


I wish I could've had you as a prof, Eugene.
8.5.2009 3:16pm
martinned (mail) (www):

If I had still more time, I'd have liked to include some of the falsehood-based torts, such as fraud, negligent misrepresentation, and trade libel.

Is that how you go about setting up a course? Wouldn't it make more sense to start by listing the material that is supposed to be covered in a basic torts class, and then to work your way back to see how much time to spend on each subject?
8.5.2009 3:20pm
None of the fun intentional torts like assault, battery, or conversion?
They made for the best exam questions.
8.5.2009 3:22pm
Dave N (mail):
I didn't read the syllabus (yet) but I had the same thought as sburch79. Where are the intentional torts? Unless the bar exam has radically changed in the last 20 years, those will be on the bar exam.
8.5.2009 3:26pm
alkali (mail):
My own view is that fraud and negligent misrepresentation are better thought of as reliance-based torts and ought to be covered in contracts.
8.5.2009 3:33pm
I think instruction on the falsehood-based torts would be much more useful than instruction on alientation of affection and criminal conversation. Fraud, etc., come up all the time in practice, not to mention the bar exam.
8.5.2009 3:34pm
EvilDave (mail):
The problem with a syllabus is that law classes tend to fall further and further behind. This creates a loss of credibility.
I finally gave up on my Torts class after we fell 4 weeks behind the syllabus, and I had no clue about the reading because I had read those cases 4 weeks ago. I walked out during the break and spent the next few months of class time in the library with the restatements, flash cards &outlines. I got one of the two As in the class.
Between Torts &Contracts (which was taught as a Promissory Estoppel class and tested as a Contracts class), I gave up on learning from my teachers and just started using outlines and flash cards.
8.5.2009 3:36pm
Wow, I think I'll have to audit the class!

I agree with Specast that at fraud, etc., at least be touched upon, since many lawyers come across it all the time. On the other hand, the learning curve for those torts is quick, and I believe most of us get it down early in our practice.
8.5.2009 3:41pm
Typo on p. S4 at the bottom: "... and this class is especially true for this class in particular."
8.5.2009 3:45pm
Jon Roland (mail) (www):
Out of curiosity, what is the cost to the students of the corresponding reading materials, and what would be the position of the school if one student digitized them and handed out copies to his fellow students?
8.5.2009 3:46pm
Richard Riley (mail):
No basic libel and slander? That was covered in first-year torts when I took it shortly before Noah's flood (1980-81). Is defamation a separate course now?
8.5.2009 3:51pm
Jon Roland (mail) (www):
For a historical perspective it should be pointed out how criminal cases emerged from torts.
8.5.2009 3:52pm
Hannibal Lector:
Your students are blessed. IANAL but I believe I got a good layman's grasp of tort law just reading this.

One copy edit I noticed: Page S12, Paragraph beginning "We begin ...". Line 3: I believe 'purposefully done" was meant to read "purposefully does".
8.5.2009 3:54pm
That's pretty great. I wish my torts professor had had the sense to organize her thoughts before she tried to organize ours.

For what it's worth, there seems to be a typo in this phrase: "Torts in which the case for requiring defendant to compensate the plaintiff is especially strong because the defendant knowingly or purposefully done something that is forbidden."
8.5.2009 3:56pm
Connecticut Lawyer (mail):

Do you spend any time at all addressing whether a judge or a jury ought to be deciding issues such as negligence (i.e., mixed questions of fact and law)? Or do you leave that for your civil procedure colleagues?
8.5.2009 4:09pm
Eugene Volokh (www):
EvilDave: I hope I won't fall four weeks behind. But since I do tend to fall behind by a class or so every several weeks -- especially when I'm teaching a new class -- I have two catch-up days reserved in the syllabus.

Specast, Hannibal Lector, swg: Thanks for the typo corrections! They're really helpful, and I'd love to see more, from you and from everyone else.
8.5.2009 4:09pm
Eugene Volokh (www):
Connecticut Lawyer: That particular question I leave to others, though I might touch on that in class discussion. But I do have several units in which I ask whether the basic legal decisions -- on matters such as design defects, for instance -- should be made chiefly by legislatures, by judges, or by jurors.
8.5.2009 4:11pm
It was depressing to see that most of the assigned cases were decided after I took Torts.
8.5.2009 4:32pm
Remember that when in a courtroom or in a negotiation people on the other side have gotten you angry enough that you respond non-substantively, they have won and you and your ideas have lost.

But that's only true if "you" are an evil right winger. If your arguments are heroic and left wing you can get as angry as you like and the judiciary and media will protect you. In fact, you'll find in law school that you can reject assignments that require you to make a right wing argument.

b. Marry the abstract arguments and the concrete arguments.

And then you had to go and use homophobic language like this. Everyone knows that "marry" doesn't mean the melding of opposites. It is a meaningless placeholder for whatever one wants to do with it. Ying &Ying, Yang &Yang, whatever. To use it in this obsolete sense is thoughtcrime.

Great syllabus though. We didn't have them in my day. No computers.
8.5.2009 4:34pm
Go Horns!:
Prof. Volokh: Will you be addressing how causation in the Third Restatment of Torts differs from prior conceptions of causation?

Probably more of a topic for a seminar, which was where I was exposed to it, but during the seminar, I thought it would have been of help in my torts class to see a different way of handling cause-in-fact and proximate cause, i.e., extent of liability in the 3rd Restatment. I bring it up because in your syllabus you address the concept of remoteness, which is really a question of should X be liable for this wrongfull act that happened long ago? I think it is important to put forth that the remoteness question is really a policy question and not some test of physics.
8.5.2009 4:38pm
Really very good. If it wasn't 104 pages, I'd print it out and store it with my old Prosser.

The section on damages (Nov. 2) appears quite short for the importance of the topic. I see that you work it in with some of the other provisions, but it appears only in the concept of how much can be recovered. Wondering whether you treat it as an essential element which must be shown for the tort to be actionable, and if so, where that appears?
8.5.2009 4:46pm
Eden (mail) (www):
typos from the intro:

S4 - "That's when making drawing analogies" - presumably one or the other word intended, and not both

S4 - "and this class is especially true for this class in particular."

S5 - "What, if any, security precautions should I take it to prevent me."

S10 - "only that that"

S10 - "Are particular reasons to think" - Are there?

S10 - "shifting to do a different rule" - shifting to a different rule?

S10 - "reputation-injury" - reputation-injuring?

S11 - "choose not to business" - do business
8.5.2009 5:20pm
Eugene Volokh (www):
Eden: Excellent, thanks very much!
8.5.2009 6:12pm
T.S. Jones:
It'll be interesting to see whether any law graduates in three years can find jobs in the legal profession, given current trends. Now that should be an interesting tort problem in the making. ;-o
8.5.2009 10:28pm
mic deniro (mail):

That's a lot of coverage, but the class is 5 units (i.e., 250 minutes per week) and runs 14 weeks

I take it you'll be teaching 5 50-minute classes a week for 14 consecutive weeks.

How will you do so given that you will be furloughed, based on the recent decision by the UC Regents, for somewhere between 5 to 7 of the 70 days in those 14 weeks?

I hope you're not planning to work on furlough days out of concern for the students. The only way the Legislature is ever going to address the UC funding shortfall is because of an outcry from tuition-paying parents that, despite increased tuition/fees, they are getting less for their money. [Students will not complain because, according to the old saw,they are the only consumers who are happy when you give them less for their money.]
8.6.2009 8:50am
Going by your 35pp/wk metric, you should allow the kids 3 weeks to read that syllabus.
8.6.2009 10:05am
cjwynes (mail):
Sounds like you're skipping most of the intentional torts, unless "trespass" means everything that fell under the old writ of trespass.

As for products liability, I always thought the most interesting thing I learned about it was how pointless "strict liability" is, since it still never makes sense for the business to adopt those precautions unless it would have made sense under the Hand formula anyhow. PL was my Torts prof's area of expertise, he had a hilariously dry wit, so I took his 3L course on PL. I didn't go into any of that stuff where all these economic theories about behaviour and liability are useful, but I'm glad I learned them just the same.
8.6.2009 10:58am
tired of blogs:
mic deniro -- Like most academic institutions imposing furloughs on faculty, faculty at the UC are expected to take their furloughs on non-instructional days. Of course, service and research expectations will undoubtedly not be lowered a whit.

Some people argue that faculty should just take pay cuts instead, for the sake of honesty, while others argue that pay cuts might never be returned and furloughs have the virtue of being temporary interruptions to normal pay.

My own institution has taken an interesting middle: we've cut faculty pay, but left our base salaries officially at their prior, higher levels. Our future pay increases will be based on the higher base salary rather than the current salary, until a pay increase produces convergence. Our pay cuts have been relatively quite small compared to the effective pay cuts produced by the furloughs at the UC, though.
8.6.2009 3:23pm
mic deniro (mail):
My point was that if EV teaches five days a week for 14 weeks, he can't take the one or two days of furlough per month mandated by the Regents.
8.6.2009 4:23pm
How many casebooks have 104 pages of material once you purge the opinions copied from the public domain and written by public servants?
8.7.2009 1:36am
simmonsj (mail):
As an incoming 1L not entirely unfamiliar with law school and the legal education process, this syllabus has perhaps the best explication of the demands and expectations of law school I've read yet, and I'm already planning to re-read the introduction before starting classes in a couple weeks. I'll freely admit that, like the overachiever I am, I've glanced at a couple books promising "a leg up" on the competition, but those that I looked at really contain nothing more than idiosyncratic and time-consuming study methods or are simply anthologies of 1L horror stories. None really explain the process of "learning to think like a lawyer" like the first section of this syllabus.

The most poignant section, I think, is that on policy arguments, and your consistent insistence that there is not always a single right answer, something that I expect will come as a shock to the typical law student. Even those coming into law school with political science or philosophy degrees are accustomed to having a single right answer to most questions (well, perhaps not philosophy students, but everyone else), or at least to being the undisputed victor in their policy debates (law students are, after all, supposedly the cream of the crop). Perhaps it was merely a function of the circles I ran in during undergrad, but I can immediately think of several fellow students making the jump to law school who are going to have trouble accepting this new reality.

In any case, thanks for the insight, Prof. Volokh, and keep up the good work.

Oh, and I seem to have stumbled across another typo, on S9, ΒΆ 5: " to report it right way..."
8.7.2009 2:54am
Eugene Volokh (www):
simmonsj: Delighted that you found this helpful, and thanks for the typo correction.

mic deniro: Furlough, shmurlough, but in any event I'm pleased to say that I teach the five-unit class in three days per week (100 minutes Mondays and 75 minutes Tuesdays and Wednesdays).
8.7.2009 2:26pm

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