Showing posts with label teaching. Show all posts
Showing posts with label teaching. Show all posts

Sunday, September 22, 2019

Teachable torts, Rugby World Cup edition: When battery exceeds consent in sport

More than once over the years, I've received student-evaluation feedback complaining that my use of sport cases and hypotheticals in 1L Torts is detrimental to students not interested in sport.  Now I explain to the class in advance why we do it.

Torts is about deriving the rule of law from what the enlightenment philosophers termed our "social contract."  The sport field is a brilliant place to test out tort law, because it's a place where the social contract is most unusually suspended.  If your office workmate punches you in front of the copier, you'll consider suing her for battery.  Meanwhile, you'll most likely swallow your wounded pride when she takes you down on the soccer pitch.  Understanding the difference between the two cases is what tort law is all about.

In that vein—and in honor of the Rugby World Cup, with England v. Tonga getting under way as this post goes live—I present for your consideration St. Helens vs. Wigan in the 2014 Super League Grand Final of rugby: also remembered as Lance Hohaia v. Ben Flower.


There is, moreover, fascinating follow-up to this encounter to be found in Guardian coverage in 2015 and in BBC coverage in 2016.  The incident was recently recalled by TV NZ 1's Luke Appleby, who suggested that tort liability might be just the thing to bring rugby sluggers to heel.

HT@ barrister David Casserly, who first brought this dust-up to my attention.

Wednesday, September 11, 2019

Teachable torts, Patriots edition: Civil complaint against Antonio Brown

Antonio Brown in 2014 (by Brook Ward CC BY-NC 2.0)
New England news is afire today over the civil lawsuit filed against NFL Patriots football acquisition Antonio Brown.  It happens that many 1L law students are presently immersed in their first exposures to intentional torts and federal jurisdiction.  So here from Mnwilla at Scribd is the complaint and some comments for thought.




Notes and Questions

1. The case is filed in federal court in Florida, but the claims are all in state tort law. What is the basis for federal jurisdiction?  Why do you think the complaint was filed on Brown's first scheduled day of practice with the Patriots?

2. The fact statement is lengthy, paragraphs 14 to 74. But federal practice requires only "notice pleading."  Plaintiff's counsel gives up a lot of information about the plaintiff's theory of the case by putting more content than necessary into pleadings.  So why so much ink on factual allegations?

3. There are five straightforward counts, or causes: two in battery, one in false imprisonment, one in IIED, and one in invasion of privacy.
  • Notice how false imprisonment appears incidentally to other claims.  Unlike MBE hypotheticals, few cases in real life support false imprisonment by itself. 
  • One of the battery counts is called "sexual battery (rape)."  That's not really a distinct kind of battery in multistate common law, and it doesn't here appear to be covered by any specific statute, apart from common law.  Nevertheless, a plaintiff may claim separate counts of tort upon discrete factual bases.  What are the advantages of doing so?
  • What challenges does the plaintiff face in proving IIED?  Do the factual allegations get her there?  Is there vulnerability on this count or any other to a 12(b)(6) motion?

4. The plaintiff seeks punitive damages, and the bases for that claim are stated within the counts. Some jurisdictions require that sufficient allegations to support a claim for punitive damages be stated in a separate count, even though "punitive damages" is a damages claim, not a tort.  Can you discern the rule for punitive damages in the state jurisdiction, based on the allegations?

Thursday, September 5, 2019

Colorful CUNY comics teach environmental law, policy, and social justice for all ages

Comic books are not new to legal education, but the Center for Urban Environmental Reform (CUER) at the City University of New York Law School is trailblazing.  Among the fabulous contributions to the recently published The Media Method (CAP), a book about popular culture in legal education, is a chapter by CUNY Law Professor Rebecca Bratspies and her artist-collaborators, including Charlie La Greca.  They are using comic books to reach kids, and, well, me, to talk about environmental conservation and climate change.  They made a video, too, about the project:


When I saw Professor Bratspies at the SEALS conference in July, she gave me a copy of her most recent creation, Book 2 in the Environmental Justice Chronicles!: Bina's Planet.  Suffice to say, it's another hit.  No spoilers, but I was hooked from page one, when heroine-everywoman and high-school-soccer-star-alumna Bina returned to her school-stadium pitch, where, implicitly, young women's soccer reigns supreme.  She goes on to save the day with her colorful cohort, demonstrating en route best practices in youthful social activism à la Greta Thunberg or Xiuhtezcatl Martinez.  I love that Bratspies elevated the tale to the planetary level, making it simultaneously descriptive of the supranational threat and artfully suggestive of trending science fiction by black women writers (see also Terra Nullius).

Bina's Planet is not yet online, but is available in paper from CUER for public education projects.  While you wait for mass dissemination, catch up with Book 1, Mayah's Lot, available to download, or watch and listen online:



Incidentally, for a related CUNY workshop on the Freedom of Information Act in 2018, Bratspies, La Greca, et al., produced a pamphlet-sized special appearance of Mayah on the FOIA.  I have a copy, but cannot find an image in circulation.  I hope they'll put it online in the future.

Monday, August 19, 2019

'The Media Method': Pop culture-oriented teaching book hits shelves (discount code for 2019 buyers!)

The Media Method: Teaching Law With Popular Culture has hit the shelf at Carolina Academic Press.  I contributed a chapter on pop-culture audiovisuals in 1L Torts to this rich volume conceived, compiled, and edited by pop-culture-in-law maven Christine A. Corcos, the Richard C. Cadwallader Associate Professor of Law at Louisiana State University.  Authors discussed the project recently at the annual meeting of the Southeastern Association of Law Schools (SEALS).  Here is the publisher's description:


Many law professors now teach courses by using examples from popular culture, but there is no comprehensive overview of ways to integrate non-law materials into the legal curriculum. In this text, more than two dozen law professors from the United States, Canada, and Australia demonstrate how to integrate fiction, poetry, comic books, film, television, music, and other media through the first year curriculum traditionally offered in U.S. law schools as well as a number of advanced courses in many subjects. The heavily illustrated book also includes best practices as well as pedagogical justifications for the use of such methods.

The front-matter online includes the table of contents.  Chapter 10 is my Torts Through the Looking-Glass.  Here is the first paragraph (footnotes omitted).


Students today view the world relative to its representations in digital media.  This digital looking glass, or mirror, of reality incorporates fact and fiction and has itself come to define our popular culture.  Accordingly, today’s students benefit from the examination and analysis of challenging subject matter in the real world relative to its digital imaginings.  Instructors in torts can promote learning by bringing into the classroom popular cultural expressions extracted from the vast audiovisual libraries of the Internet.  These demonstrative exhibits can be used to support problem analysis, to explore policy and theory, to bridge study and practice, and to raise issues in professionalism.  This chapter demonstrates the range of multimedia material available in popular culture today with relevance to torts.  My aim is to encourage instructors to build their own libraries of materials and to enhance student learning by holding up torts to the looking glass.
Use code TEACH19 for 25% off in 2019!



Monday, August 12, 2019

Profs talk pop culture at law school conference

At the annual meeting of the Southeastern Association of Law Schools in the last week of July, colleagues and I had the opportunity to share ideas about teaching law with popular culture. I learned a great deal at that session (and others).  I was able to share about my own use of audiovisual content as it's changed over the years.  I'll say more as we near publication of our book project, The Media Method.  Meanwhile, this teaser ....

Carolina Academic Press mocked up a display copy of the forthcoming Media Method.

Contributors to The Media Method include Professor DeLeith Duke Gossett at Texas Tech School of Law. Presenting at center here, DeLeith is a former student of mine. Teachers will understand the giddy pride induced by collaborating with such a colleague.

Monday, June 3, 2019

Teaching Trump: Four Thoughts for Faculty

Saturday morning, at the annual meeting of the Law and Society Association (LSA) in Washington, D.C., I served on a panel about "Teaching Law in the Trump Era."  My thanks to panel chair John Bliss, University of Denver Sturm College of Law, Swethaa S. Ballakrishnen, UC Irvine School of Law, and other founders and leaders of the new LSA Collaborative Research Network #19 on legal education, for organizing this program.  Here is the panel abstract:

The Trump presidency has reportedly attracted a new wave of law school applicants who are motivated by issues ranging from sexual assault, to racial justice, to the rights of immigrants, to the basic foundations of the rule of law. In this context, how do U.S. law teachers address legal and political headlines that many faculty and students find disconcerting? This session offers diverse perspectives on this question from accomplished law faculty who teach a wide range of legal curriculum.
Trump in the classroom.  Literally.  White House photo.
For my bit, I focused on President Trump-related materials I used to teach defamation in Torts II in March 2019.  In class, I assigned as reading the complaint in Zervos v. Trumpbefore the New York Appellate Division at the time—alongside Justice Thomas's opinion on cert. denial in McKee v. Cosby.  The pairing of a pleading and a scholarly judicial opinion allowed a study first of tort doctrine, and then of constitutional and policy dimensions, all the while with a running contemporary thread of "#MeToo," which ran back to our fall 2018 study of intentional torts.  Outside of class, in review sessions, I used Melania Trump's 2017-settled complaint against blogger Webster Tarpley (Variety).  These "Trump cases" afford ample opportunity to explore skills and practice collateral to the law of torts, such as litigation strategy, legal professionalism, and client counseling.

Professor Bliss suggested that we fashion our presentations around student feedback and reactions to Trump-related materials.  To that end, I solicited input from my class (and from colleagues in academic support).  Five students generously took time from their after-exams pursuits to oblige with deeply thoughtful, sometimes moving, and thoroughly informative feedback.  I am grateful to them.  I extracted their words, anonymized, for use in my panel time.  I won't reiterate them here as to further protect their anonymity. But I'll share four conclusions about "teaching Trump," drawn from this feedback. 

(1) Plan well and stay on course.  Because this content tends to evoke strong emotions, it is important for the teacher to map out an agenda about where the class discussion should go, in consonance with what the materials offer.  Then the class must be kept on task.  This might require more involved moderation of class discussion than is the norm for some teachers.  Students will sometimes make observations driven by emotion and supposition, and that's OK.  But those observations need to be responded to with channeling into constructive analysis.  If for example a student says that the plaintiff is grubbing for money, that's a great springboard for legitimate questions, without having to challenge or verify the premise: How does tort doctrine safeguard, or not, against disingenuous claims?  What are the incentives or impediments for plaintiffs and their lawyers, born of transaction costs?  How does a lawyer counsel a client about uncertainty of recovery?

(2) Avoid assumptions and keep an open mind.  The teacher should not suppose that she or he knows what the students are thinking, whether as a group or to an individual.  Someone in the class is a Trump voter and believes he is America's only way forward.  Someone else regards Trump as a source of post-traumatic stress.  They're not always showing you these reactions, for various reasons.  And they're not necessarily who you think they are. Take care not to make assumptions about where people stand.  One student who wrote to me really forced me to turn over the immigration "wall" issue in my own mind, and I learned a great deal from her different perspective.  Isn't the great thing about being a professor that continuing education is part of our job?

(3) Model professional skills.  When a teacher leads a law school class, students are learning doctrine, but they're also "meta-learning" lawyering skills such as leadership and dispute resolution.  How a teacher manages conflict in the class and moderates discussion will be as important and memorable a lesson for some students than the subject matter being taught.  For this reason, teachers need to be deliberate in and thoughtful about pedagogical methodology.

(4) Lighten up.  Yes, our content in law school can be heavy.  We have to talk about things in the classroom that reveal the absurdity of "trigger warnings," because life doesn't come with a warning label, and law is about life.  But it is possible—if hard—to engage with heavy issues and to do so with a light heart.  Guidance can be drawn from some recent developments in comedy—think Hannah Gadsby and Ellen DeGeneres—to show that humor can be accomplished without it being at anyone's expense.  Don't get me wrong; I love a good insult comic.  Just not at the front of the classroom.  One student who wrote surprised me with the observation that a light joke I made diffused tension over the fraught subject and made students feel comfortable participating.  Now if only I could remember what I said.

These conclusions entail work for any teacher, no matter how experienced.  I am far, far from excellent in realizing these lessons.  But feedback from my students has given me goals.

Thanks also to excellent co-panelists at LSA, and to all the teachers and scholars who contributed to the roundtable discussion.  I have appropriated many of their insights and ideas for further exploration and experimentation.  Co-panelists were Scott Cummings, University of California, Los Angeles; Rashmi Goel, University of Denver Sturm College of Law; and Gwendolyn Leachman, University of Wisconsin Law School.




Attention faculty!

 Dean Peltz-Steele and I are collaborating to produce an open-source resource for faculty in law and related fields to teach law and policy through "Trump case" materials.

Stay tuned for more information about "Trump Law."



Friday, February 1, 2019

Teachable moment in Torts:
'Complaint alleges mom with dementia dumped outside Long Beach healthcare facility'

National media this week picked up this story from CBS Los Angeles about a woman suffering from dementia who wound up on the street after what looks like a botched transfer between a hospital and her residential facility.  The victim's daughter filed a complaint with regulatory authorities, but so far has said she will not file suit.  As advanced or two-semester classes in U.S. tort law wade into the deep end of the pool this spring, this story invites analysis on a number of fronts.  Here are some questions to get the discussion going.



1. Does the victim, through her daughter, have any cause of action in common law tort?  Can the injury requirement be met for the general negligence tort? for recklessness?

2. Is there a breach of duty here that can support a business tort?  Are there damages recoverable in business torts?

3. Could this be actionable "negligent infliction of emotional distress" (NIED)? in some states?  Can you demonstrate balance in the elements of negligence to persuade a court that NIED here will not open the floodgates?

4. How does the victim's dementia affect the torts case?  Is she an eggshell plaintiff?  Could she have been contributorily negligent?  Can she have been both at the same time?

5. Could the outcome of the regulatory investigation affect proof or liability in a tort case?

6. Does any tort theory rest in the daughter as plaintiff on her own behalf?  Is there any way to plaintiff-bystander liability?

7. Low temperatures in Los Angeles in the last week were only in the 50s (F), but northern cities have been in the grip of below-zero record lows.  Suppose the victim had been outside in Chicago and suffered frostbite.  How does that change the disposition of her tort claims? her daughter's?

8. Further entertaining the idea that the victim suffered physical injury, can the defendant make dispositive arguments on duty? on causation?  What's the difference?  Could there be a "scope of liability" problem in the terms of the Third Restatement?

9. There are two healthcare facilities involved.  Could both be defendants?  Would both be liable?  Would liability be joint or several? apportioned? to what effect?



🌠 Coming this June from Carolina Academic Press!
The Media Method:
Teaching Law with Popular Culture

Edited by LSU Law Prof. Christine A. Corcos, @LpcProf, Media Law Prof Blog
With contribution on torts by yours truly

Monday, September 18, 2017

Video resources for teaching theory of intent in tort law

I've created some new video resources to help in teaching common law torts.  These videos all relate to theoretical points in the introductory unit on intent.  The videos are available on my public YouTube channel.  They can be used in any torts course, though they track Shapo & Peltz-Steele, Tort and Injury Law (3d ed. 2006) (CAP, FB, Amazon), and Steele's Straightforward Torts (free from SSRN).




Study: Intent in U.S. Tort Law.  This video offers a study in the theory of intent in U.S. tort law.  A movie clip is analyzed to demonstrate analysis of intent in battery.  Running time: 8:50.



Explainer: "Pound Progression" in U.S. Tort Law.  This video briefly explains the three steps Dean Roscoe Pound observed in the development of civil justice systems.  Running time: 2:19.



Explainer: Eggshell Plaintiff Rule in U.S. Tort Law.  This video briefly explain the operation of the eggshell plaintiff rule, as well as the reason for its inapplicability to intentional infliction of emotional distress.  Cited is Vosburg v. Putney (Wis. 1891).  Running time: 2:36.




Explainer: Culpability Spectrum in U.S. Tort Law (Pound to Intent).  This video examines the culpability spectrum in U.S. tort law with an emphasis on variations on intent.  The video further explains how culpability can be varied to compensate for the uncertainty implications of the Pound progression.  Running time: 3:44.