A Note for my 1L Torts Class

I’ve written my Torts class a note about my class policies and about how to read and study law. I’m reprinting it here because it may be of interest to other people about to start law school. I’m hiding it below the fold because it’s longer than the average blog posting, and I doubt many others will be interested.

Welcome! This note sets out some important class policies, and also has some thoughts about how to go about reading and studying law.

What you will need most of all in class is an open and yet critical mind informed by experience. You should also bring the casebook to every class: Cases and Materials on Torts (9th ed. 2008) ISBN: 978-0-7355-6923-2, by Richard A. Epstein. Please do not settle for an earlier edition as the page numbering is different, as is the selection of cases.

There will also be some supplementary materials and problems appearing at various intervals during the course, some of which will involve interaction with your extraordinarily able Dean’s Fellow, Ms. Jennifer Hammitt. These will, unless otherwise stated, be required reading, and some will require you to provide written responses, most likely online.

Most of the class will proceed by discussion most of the time. Your questions are always welcome. I tend to lead discussions with a lot of questions of my own. Some of them are leading questions, some of them are misleading questions, but sometimes they are just plain questions. I hope you will come to believe that what’s happening in the classroom is at least as much about learning to think like a lawyer – to work with legal concepts, to learn which kinds of facts, ideas, policies matter, and how to put them to work for you – as it is about whatever legal subject we’re working on Torts. In short, you are learning to play a sort of game – but a uniquely serious game, with very complex rules and real-world stakes that will matter enormously to the future clients who will entrust their hopes and problems to you.

Legal instructors differ in the extent to which they are willing to be parentalist. Some of us observe that law students are adults, and conclude from this fact that they should be allowed to make their own choices as to whether they show up for class and whether they participate in class. All that matters, these instructors argue, is how students do on the exam. Other instructors respond that by signing a contract with the law school, our students have engaged us to be trustees for their education, and to use our trained judgment to do whatever we can, within the bounds of law and reasonableness, to maximize our beneficiaries’ educations. I agree with both of those views. But what carries the day for me is the thought of your future clients. They’re entitled to expect the best you can deliver. So they’re entitled to expect me to try to encourage you to be the best you can be. That will take effort on both our parts, especially given my strong belief that what we do in class is at least as much about teaching you how we do it as it is about teaching you the substance of some foundational concepts in the law. ⁽¹⁾

So, in this class you have to play. Students will be called on randomly in each class. Participation on one day will not shield you from participation on the next.

And you have to be there. I will take attendance every day, except when I forget. ⁽²⁾ You can cut up to a whole week’s worth of classes without penalty to your grade, although who knows what the lost knowledge will do to your education, or the fear of the lost knowledge will do to your mental health. Miss more than that, and it will begin to lower your class participation grade. ⁽³⁾ If you are consistently absent (missing more than seven classes without a good excuse ⁽⁴⁾) I will contact the Dean of Students office and ask them to speak to you. Miss nine or more classes and there’s a risk we may drop you from the class. Please make every effort to come to class on time. ⁽⁵⁾ If you can’t make it on time, it’s still better to come late than not at all, as a lateness only counts as half an absence.

A few words on reading legal texts (aka “your reading assignments”). One of the first skills you are going to learn in the first year of law school is how to read much more slowly. (Then in the second year we’ll expect you to read faster again. Go figure.) This is not a fun thing to learn after years and years in which reading faster was a prized and valuable skill. But legal texts are not like most other texts, and every word can matter. What’s worse, what is absent is at times more important than what is present. Therefore, while it is essential to read the text carefully and slowly to absorb its exact meaning this is only the first step, and not even, in my personal experience, the hardest to master.

To become a really great lawyer you will need to internalize the process of having a dialog with the text – call it dialectic reasoning, or an internal Socratic Dialog if you must. You need to be sensitive not only to the specific content of the rule or theory being propounded, but its dependence on various facts, assumptions, and policies. In other words, once you get good at this (but not, I hasten to add, in the first week!) you will need to understand how to figure out what the reach of a decision or rule is, and also what it would take to open the door to a different outcome (we often call this “distinguishing” the case or rule). This dialogic ⁽⁶⁾ reading is an essential legal skill, a core part of “thinking like a lawyer” and one we’ll spend a lot of time acquiring and exercising.

Don’t forget, also, that courts don’t always agree, and that US law is far less monolithic than it appears in Civics classes. Yes, there’s a great deal of overlap on many of the basics, but the independence of the states, their ability to have their own legislatures and own court systems, is more than a formality. Federal law also varies sometimes between circuits, but there’s a Supreme Court to resolve circuit “splits”. There’s no such court for state law matters, only a series of processes by which state courts talk to each other (“persuasive authority”), and legislatures enact rules designed by private or semi-private national committees that have taken on the mantle of increasing uniformity among state laws in service to predictability, standardization, easy commerce, and simpler bar exams. It’s rarely enough to know the “rule” because so often it does not exist – in many cases you will need to know several contradictory versions of “the rule” as they are used in different states and you will also need to know the arguments that back each version up. Plus, rules change – what’s the dissent today may be the majority tomorrow. An even harder part of “thinking like a lawyer” is learning how to gauge when a rule is ripe for change, what kind of arguments might spur that change, and when there’s no point in arguing for it. Mostly that comes only with time, from seeing many lines of cases and understanding – in a historical context – how courts and lawyers respond to stimuli.

All this has implications for how you approach the experience of speaking in class, whether as a volunteer or an unwilling volunteer. Please try not to get too worked up about it. Admittedly, torts is not a subject in which “there are no right answers.” Some questions, a few questions here and there, actually do have ‘right’ answers, at least in the sense that they are the conventional answers that the very large majority of the legal profession, including critically judges, would give if asked. And, yes, part of what we do in law school is to indoctrinate you into a way of thinking (“thinking like a lawyer”) so that you know how to give those answers too. Sometimes the ‘right’ answer in this sense of legal convention is also the just answer, or the efficient answer, or even both. Sometimes the weather is perfect, too. On the other hand, many many questions do not have a right answer. Instead they have several possible and even conflicting answers. So even when you give a perfectly good answer, indeed especially when you give a perfectly good answer, that just opens the door to a conversation. Part of my job is to teach you how to work with such questions and see the range of possible answers because (some) lawyers need to persuade others to adopt the most favorable of a range of possible answers; other lawyers’ jobs include choosing an answer, either judicially or legislatively, which is the best answer for the circumstances or for society. If you are coming up with some answers in class you are probably doing very well – no one (except possibly you) expects you to have all the answers.

Reference Materials. I’m reluctant to recommend more reading materials because I think even relatively short casebook assignments (should) take a long time when you are a first year student, and the last thing you need is more reading (or worse, substitute reading). There’s another reason to be very wary of “outlines” and “hornbooks’ – if misused they give you an illusion of competence. It is possible to learn the rules of torts from a hornbook. It may even be possible to learn them well enough to do well on the exam. But what you lose by relying on a canned presentation of the law is the frustrating but ultimately valuable experience of learning to extract meanings from legal texts yourself instead of having to have them pre-digested. That extraction skill is critically important for almost every area of legal practice. There is far, far too much law on the books – and it changes too quickly – for even three years of law school to teach it all to you. Especially if you plan to work on anything interesting and not totally routinized it is far more important to learn how to read the law and learn to navigate within it than it is to learn to regurgitate a hornbook.

That said, there are two legitimate reasons why you might want to consult an outline or a hornbook. The first is if you’ve spent many hours trying to figure out some point and just need to look it up. The second is during reading period, after you’ve gone to the effort of systematizing, synthesizing, and outlining, itself an educational process, but want to be sure you haven’t left anything important out. Torts being a required course in every law school, there are a wealth of materials on offer. (Emmanuels were very popular when I was a law student.) One that you should consider is Torts by Richard A. Epstein (Aspen 1999), which while quite dated has the advantage of being somewhat linked to the casebook (alas, a few editions ago) since it has the same author.

I do, however, suggest you avoid buying an outline that is case-oriented rather than subject-oriented. Not only do they tend to be of lower quality, but they are most likely to end up as being used as training wheels for case analysis – which means you’ll never really learn to ride properly on your own.

Another book that I always recommend to law students is Getting To Maybe: How to Excel on Law School Exams by Richard Michael Fischl & Jeremy Paul (ISBN: 0890897603). Law exams are not like most other exams you have taken in your life, and this book more than others I’ve seen spills some of the secrets.

How to contact me. I urge you to contact me if you have questions, comments, or suggestions about the class. I cannot stress strongly enough how important it is to come and see me (or email me) early in the semester if you think you need help understanding something. If you are doing the reading but still feel lost or confused, don’t wait until the last three weeks of class. I can help. But odds are that I can’t help nearly as much at the last minute.

You can call me at (305) 284-4285. Most days, I am in and out of the office. If you get my voice mail, leave a number and state when is the best time to call back.

You can come by my office, Rm. 382, any time, but since I’m in and out erratically, I advise you to call ahead and make an appointment. Also, if you just turn up, I sometimes get busy and may have to ask you to come back later. I’ll announce office hours early in the term, but don’t feel limited to trying to schedule appointments in that window.

Probably the easiest way to contact me is to send me e-mail at [obfuscated]. I am online a lot. If you don’t hear back from me within 24 hours, it means my spam filter ate your email and you should resend it to my backup email account at [obfuscated]. You don’t get as fast service on that account, so don’t use it first, but the spam filter is a little more accurate.

The Fine Print. ⁽⁷⁾ Class participation is important. Nobody will have any fun if I do all the talking. Plus, class is your opportunity to test out your answers to questions (whether or not you happen to be the one called on) before the exam. Volunteered answers in class are always welcome. Please note, participation does not mean your questions must always be dazzling or that your answers must be erudite. This is the first semester of law school, you are beginners, no one expects you to know all the answers or even all the questions yet. And, again, learning how to approach legal issues is at least half the battle.

Use of Personal Technology in the Classroom. The classroom environment must support learning for all students. In recent years, students increasingly report that other people’s technological devices are distracting them. Accordingly, in addition to other professional conduct and the corresponding courtesies, please refrain from any use of an electronic device that might disturb your neighbors – especially anything that flickers (e.g. video) or makes any noise. Please, turn cell phone ringers off. I would be grateful if you would make a special effort to refrain from displaying wallpaper, screen savers, or other material on your laptop screen reasonably likely to offend or distract your classmates. It should also be understood that games (electronic or otherwise) are inappropriate for the classroom. I will sanction any student who interferes with the general learning environment in the class. Such sanctions may include, but are not limited to, the loss of the privilege to use a laptop in my class, individually or collectively.

Personally, I love my laptop. But not everyone loves them. Because some people who do not use laptops find the clicking of keyboards distracting, I will (room geometry permitting) create a laptop-free zone for those who wish to have some distance from them.

Class Assignments and Hypothetical Exercises: Whether or not each part of a class’ reading is specifically discussed, you are responsible for all cases, notes and materials assigned. Further information about exercises and hypotheticals will be forthcoming.

Examinations and Grades. I am sorry to inform you that there will be a closed-book final examination at the end of the course. It will be composed substantially (if not exclusively) of essay questions. What is more, in order to do well on this exam you will not only have to have internalized some of the ‘thinking like a lawyer’ we’ll be demonstrating in class but also learned some of the basic substantive tort law we’ll be covering. Diligent practice in writing (or at least outlining) answers to the hypothetical problems in the book and in class will help prepare you for the final. Your Dean’s Fellow should be a particularly valuable resource for this.

Class participation. I give significant credit for class participation. I take notes during every class, awarding checks (helpful/competent) and stars (wow!). Note that unless you are rude or disruptive I don’t give negative credit, so having a bad day is just a lost opportunity, not a disaster. I total it all up at the end of the semester and divide the class into groups. Subject to any limits imposed by the mandatory curve, extraordinarily good class participation will raise your final grade by half a level (e.g. from a medium B+ to an A); good class participation will raise your grade by one quarter level (put you over the top if you are close to the line between two grades); very poor class participation will lower your grade by one level if you are close to the line between two grades (this, I am happy to say, is very rare); outrageously bad class participation (i.e. disruptive or offensive behavior) will lower your grade one level (has only happened once). Very poor attendance may contribute to a diagnosis of very poor class participation. For your information, I have now given a small grade decrease three times in my 16-year teaching career. In two cases the student missed *a lot* of classes. In the other the student was repeatedly rude to peers, even after being warned privately.

Mechanics of Grading. Consistent with the law school’s rules, I grade all exams in a manner designed to disguise the author’s identity — I see only the anonymous grading number, not your name. After I turn in the exam grades to the Registrar’s office, the Registrar’s office produces a list of names and anonymous grading numbers so I can factor in class participation. However, I ask my secretary not to show me this list, and instead I am given a list of grading numbers sorted by the class participation grades I have already given to my secretary. I then compute the final grade. I make it a point to not know the names that go with an exam until after the final grade has been turned into the Registrar’s office. Once grades are turned into the Registrar’s office, the law school’s rules prohibit me from changing a grade for ANY reason other than clerical error. These are rare.

A Final Note. I loved law school because I discovered that I loved the study of law. That is why I’m still doing it. I hope you will love it too.

1. Some people who have read too much Economics argue that what we are in fact engaged in is “credentialing” – selling law degrees as evidence of a student’s willingness to work hard. The problem with this theory is that it can be used to argue for almost any result. For example, one might argue that if the degree is all that matters, why require attendance? On the other hand, not all degrees are of equal value. If we want to maximize the perceived value of a lawyer with a UM degree, which benefits everyone in the class, we do that by creating positive brand awareness, which requires that all graduates be as good as they can be.

2. My secretary is very organized. She doesn’t let me forget often.

3. Grades are discussed below.

4. I am very stingy with excused absences for anything other than personal illness (please don’t share the flu), relatives in hospitals, or matters involving the courts or law enforcement. So please don’t ask unless it is something like that.

5. In the words of a late colleague, “That’s not a parking permit, it’s a hunting license.”

6. My spell checker suggested this should be spelled “diabolic”.

7. Alert readers will have noticed that the type face which follows is not in fact any smaller than the type which precedes it. The text is not smaller because excessively small print can be an issue for people with disabilities. This class, like most law school classes, is heavily oriented toward reading a large quantity of difficult material in a small amount of time. If you are aware that you have a learning disability, or if you just think that it takes you twice as long to learn things by reading as other people, please talk to Iris Morera, the Disabilities Issues Coordinator, in Room A211, who can tell you about resources here that you may find valuable. All discussions will be totally confidential.