Global collab promotes teaching law without borders

Peltz-Steele, Lewinbuk, Rott-Pietrzyk, Kim, Rigó
© Used with permission

Collaborators and I had the privilege of discussing the Global Law Classroom (GLC) at the 17th Global Legal Skills Conference (GLS 17), hosted by the Global Legal Skills Institute and the Faculty of Law at Masaryk University (MUNI Law) in Brno, Czechia, last week.

The GLC is a collaboration of faculty around the world to bring together students across borders, via Zoom, to study international and comparative law and learn from each other. I wrote about the GLC here at The Savory Tort about a year ago, after a 2022 pilot run and just before we executed the first official program over eight weeks in fall 2024. I used the GLC as a one-credit component of my Comparative Law class, and I will again in the upcoming fall 2025.

© Used with permission

© Used with permission

In presenting on the GLC to our GLS 17 colleagues in Brno on Thursday, we provided a demonstration hypothetical in data protection for attendees to discuss in small groups. I developed the fact pattern initially with Cristina Blasi Casagran, Autonomous University of Barcelona, and we used it in the fall 2024 GLC human rights module to demonstrate divergence in U.S. and EU approaches to privacy.

For GLS 17, I created a video narrative (below) and briefed the audience on the salient doctrine of the respective legal systems (inset below video) (both CC BY-NC-SA 4.0).

RJ Peltz-Steele CC BY-NC-SA 4.0

The GLC is the brainchild of Melanie Reid, Lincoln Memorial Law, who could not join us in Brno, but will lead a discussion of the project later this summer at the annual conference of the Southeastern Association of Law Schools (SEALS).

The GLC faculty team in Brno was led by Rosa Kim, Suffolk Law, and also comprised Katerina Lewinbuk, South Texas College of Law; Balázs Rigó, Eötvös Loránd University (ELTE) (Hungary), and Ewa Rott-Pietrzyk, University of Warsaw (Poland). It was great fun for the five us to be together IRL after so much labor together on Zoom.

I'll have a another report from GLS 17 here at The Savory Tort on Wednesday, June 4.

Updated 'TORTZ' features latest on Amazon liability, Texas 2-step, DaBaby defamation foes, much more

New 2025 editions of TORTZ: A Study of American Tort Law, volumes 1 and 2 are posted and ready for academic year 2025-26.

Two-volume TORTZ is free to download at SSRN: volume 1 and volume 2.

The books can be purchased in well bound, paperback hardcopy, both volumes for about US$61 plus shipping, from Lulu.com. The price is cost in the United States and just a couple dollars more elsewhere in the world.

Revisions in the 2025 edition include:

Premises Liability

• Discussion of Varley v. Walther (Mass. App. Ct. 2025) on "open and obvious" dangers in premises liability.

Product Liability

• Discussion of Amazon's product liability exposure, including the 2025 order of the Consumer Product Safety Commission.
• Discussion of the Texas two-step, including its rejection In re LTL Mgmt., LLC (3d Cir. 2023), and Sen. Sheldon Whitehouse's (D-R.I.) bill, the Ending Corporate Bankruptcy Abuse Act.

Life and Death

• Revised explanation and distinction of "wrongful birth," "wrongful life," and "wrongful conception" actions.
• Discussion of the waning "suicide rule" in the context of the wrongful death suit by the family of Boeing whistleblower John M. Barnett in Stokes v. Boeing (D.S.C. 2025).
  

Government Immunity

• Discussion of Justice Clarence Thomas's displeasure with the Feres doctrine, dissenting from denial of certiorari in Carter v. United States (U.S. 2025).
• Discussion of 17 plaintiff families' victory in the bellwether Pearl Harbor-Hickam AFB water contamination trial, in Feindt v. United States (D. Haw. 2025).
  

Public Nuisance

• Note of Trumbull County v. Purdue Pharma (Ohio 2024), according with Okla. v. Johnson & Johnson (Okla. 2021), on opioids and product liability, excerpted in the book.
• Note of the Virgin Islands public nuisance lawsuit against Coca-Cola and Pepsico over single-use plastics, Commissioner v. Pepsico (V.I. Super. Ct. filed 2025).
• Note of Oklahoma's dismissal of a public nuisance claim over the Tulsa Race Massacre in Randle v. Tulsa (Okla. 2024).

Media Torts

• Discussion of the latest developments and Rule 11 sanctions in the battery and defamation litigation between promoters and rapper DaBaby, pending appeal from Carey v. Kirk (S.D. Fla. 2025).
• Update on impeached South African Judge John Hlophe's vendetta against former High Court colleague Judge Patricia Goliath, who innovated on anti-SLAPP in Mineral Sands Resources Ltd v. Reddell (High Ct. Wn. Cape Feb. 9, 2021) (upheld).
• Update on the enactment of revenge porn legislation in Massachusetts, the 49th state adopter, and the latest data protection bill in Massachusetts.

'DaBaby' Jonathan Kirk
HOTSPOTATL via Wikimedia CC BY 3.0

Business Torts

• Discussion of the expansion of civil RICO by the Supreme Court in Medical Marijuana v. Horn (U.S. 2025).

Civil Rights

• Discussion of the landmark decision in climate change litigation in Europe, VKSS v. Switzerland (Eur. Ct. Hum. Rts. 2024), in contrast with the dismissal of Juliana v. United States (9th Cir. 2024).
• Note of the plaintiff victory in the Abu Grahib torture case, Al Shamari v. CACI (E.D. Va. 2024).
• Update on the real-life "Hotel Rwanda" protagonist's lawsuits against Rwanda and GainJet, the former defendant dismissed, Rusesabagina v. Rwanda (D.D.C. 2023), and the latter case, Rusesabagina v. GainJet (W.D. Tex. 2024), now pending appeal.

New Resources

• References to new audiovisual productions related to tort law and cases, such as "What Happened to Karen Silkwood?" on Impact x Nightline (2024); the latest on table saws from NPR: Planet Money (2024); Nicole Piasecki's "Dear Alice" from This American Life (2024); the documentaries Downfall: The Case Against Boeing (2022), and Youth v Gov (2020) (re Juliana v. United States), both now available on Netflix.
• References to recently published work on tort law and theory by Ken Abraham & Catherine Sharkey; Andrew Ackley; Christopher Ewell, Oona A. Hathaway, & Ellen Nohle; Dov Fox & Jill Wieber Lens; Kate Falconer, Kit Barker, & Andrew Fell; Jayden Houghton; Michael Law-Smith; Anatoliy Lytvynenko; Michael Pressman; Joseph Ranney; and Sarah Swan.

As in past editions, the coverage includes all of the fundamentals of common law tort, as well as full introductory treatments of  

• defamation, 
• privacy,  
• interference, and  
• private and public nuisance, 

and introductions to  

• business torts, 
• the Federal Tort Claims Act, 
• 'constitutional tort,' and  
• worker compensation and alternative compensation systems. 

Printed in color, Tortz is replete with

•   'RED BOX'   treatments of fundamental rules to help students prepare for the bar exam, 
•   'BLUE BOX'   bibliographies of suggested further readings,
•   'YELLOW BOX'   assignments to online readings and audiovisual materials, and
•   'GRAY BOX'   state differences for Massachusetts bar candidates, or as demonstrative.

Global Law Classroom unites law students online

Law faculty around the world are organizing the Global Law Classroom to debut in the fall semester of 2024.

Global Law Classroom (GLC) brings together law students from participating countries via Zoom to study and discuss contemporary issues in comparative and international law. GLC started as a project of the European Legal Practice Integrated Studies program (ELPIS), under the EU Erasmus umbrella. 

The program was conceived and is coordinated by Melanie Reid, associate dean of faculty at the Duncan School of Law, Lincoln Memorial University. I've participated on the plenary faculty and as contributing faculty on the environmental law team and human rights team, developing academic modules in those areas. My students in three-credit-hour Comparative Law in the fall will participate in the GLC for one-third of their class-hours.

Besides human rights and environmental law, modules include criminal law, cybersecurity, anti-discrimination, and artificial intelligence, as well as an introduction to global lawyering and a negotiation exercise on climate risks.

Free torts textbook ready for academic year 2024-25

TORTZ: A Study of American Tort Law is complete and revised for the coming academic year 2024-25.

The two-volume textbook is posted for free download from SSRN (vol. 1, vol. 2), and available in hardcopy from Lulu.com at cost, about $30 per volume plus shipping.

• SSRN volume 1
• SSRN volume 2
• Lulu.com hardcopies

This final iteration of the book now, for the first time, includes its final three chapters: (16) interference and business torts, (17) government liability and civil rights, and (18) tort alternatives.

---

TORTZ TABLE OF CONTENTS

Volume 1

Chapter 1: Introduction

A. Welcome
B. The Fundamental Problem
C. Parameters
D. Etymology and Vocabulary
E. “The Pound Progression”
F. Alternatives
G. Review

Chapter 2: Intentional Torts

A. Introduction
B. Assault

1. History
2. The Restatement of Torts
3. Subjective and Objective Testing
4. Modern Rule
5. Transferred Intent
6. Statutory Torts and Harassment

C. Battery

1. Modern Rule
2. The Eggshell Plaintiff
3. Knowledge of a Substantially Certain Result
4. Common Law Evolution and Battered Woman Syndrome

D. False Imprisonment

1. Modern Rule
2. Problems

E. Intentional Infliction of Emotional Distress (IIED)

1. Dynamic Intent
2. Modern Rule
3. The “Heart Balm” Torts

F. Fraud

1. Fraud in Context
2. Modern Rule
3. Pleading Fraud
4. Exercise

G. The “Process” Torts

1. Innate Imprecision
2. Modern Rule
3. Majority Rejection of Malicious Civil Prosecution

H. “Prima Facie Tort”

1. Origin of Intentional Tort
2. Modern Rule

Chapter 3: Defenses to Intentional Torts 

A. Introduction
B. Defenses of Self, Other, and Property
C. The Spring Gun Case
D. Arrest Privilege and Merchant’s Privilege
E. Consent

1. Modern Rule
2. Scope of Consent
3. Medical Malpractice
4. Limits of Consent

F. Consent in Sport, or Recklessness

1. The Problem of Sport
2. Recklessness

Chapter 4: Negligence

A. Introduction
B. Modern Rule
C. Paradigmatic Cases
D. Historical and Theoretical Approaches to Negligence

1. Origin
2. Foreseeability
3. Custom
4. Augmented Standards
5. Economics

a. Introduction
b. “The Hand Formula”
c. Coase Theorem, Normativity, and Transaction Costs

6. Aristotelian Justice
7. Insurance and Loss-Spreading

E. Landowner Negligence, or Premises Liability

1. Theory of Duty and Standards of Breach
2. Common Law Tripartite Approach
3. Variations from the Unitary Approach in the Third Restatement
4. Applying the Framework, and Who Decides

F. Responsibility for Third-Party Conduct

1. Attenuated Causation, or “the Frances T.  Problem”: Negligence Liability in Creating Opportunity for a Criminal or Tortious Actor
2. Vicarious Liability and Attenuated Causation in the Employment Context: Respondeat Superior and “Direct” Negligence Theories

G. Statutory Torts and Negligence Per Se

1. Statutory Torts
2. Negligence Per Se

a. Introduction
b. Threshold Test
c. Three Mile Island

H. Medical Negligence
I. Spoliation of Evidence

1. Introduction
2. Minority Rule
3. Recognition or Non-Recognition of the Tort Approach
4. Majority Approach

J. Beyond Negligence

Chapter 5: Defenses to Negligence

A. Express Assumption of Risk (EAOR)
B. EAOR in Medical Negligence, and the Informed Consent Tort

1. Development of the Doctrine
2. The “Reasonable Patient” Standard
3. Modern Rule of Informed Consent
4. Causation in Informed Consent
5. Experimental Medicine

C. “Implied Assumption of Risk” (IAOR)

1. Everyday Life
2. Twentieth-Century Rule
3. Play and Sport
4. Work

D. Contributory Negligence

1. Twentieth-Century Rule
2. Complete Defense
3. Vitiation by “Last Clear Chance”

E. Comparative Fault
F. IAOR in the Age of Comparative Fault

1. The Demise of “IAOR”
2. Whither “Secondary Reasonable IAOR”?
3. Revisiting Mrs. Pursley at Gulfway General Hospital

G. Statutes of Limitations
H. Imputation of Negligence

Chapter 6: Subjective Standards

A. Introduction
B. Gender

1. The Reasonable Family
2. When Gender Matters

C. Youth

1. When Youth Matters
2. Attractive Nuisance
3. When Youth Doesn’t Matter

D. Mental Limitations

1. General Approach
2. Disputed Policy

Chapter 7: Strict Liability

A. Categorical Approach
B. Non-Natural Use of Land
C. Abnormally Dangerous Activities

1. Defining the Class
2. Modern Industry

D. Product Liability

1. Adoption of Strict Liability
2. Modern Norms
3. “Big Tobacco”
4. Frontiers of Product Liability

Chapter 8: Necessity

A. The Malleable Concept of Necessity
B. Necessity in Tort Law
C. Making Sense of Vincent
D. Necessity, the Liability Theory

Chapter 9: Damages

A. Introduction
B. Vocabulary of Damages
C. Theory of Damages
D. Calculation of Damages
E. Valuation of Intangibles
F. Remittitur
G. Wrongful Death and Survival Claims

1. Historical Common Law
2. Modern Statutory Framework

a. Lord Campbell’s Act and Wrongful Death
b. Survival of Action After Death of a Party

3. Problems of Application

H. “Wrongful Birth” and “Wrongful Life”
I. Punitive Damages

1. Introduction
2. Modern Rule
3. Pinpointing the Standard

J. Rethinking Death Compensation

Volume 2

Chapter 10: Res Ipsa Loquitur

A. Basic Rules of Proof
B. Res Ipsa Loquitur (RIL)

1. Modern Rule
2. Paradigmatic Fact Patterns

Chapter 11: Multiple Liabilities

A. Introduction
B. Alternative Liability
C. Joint and Ancillary Liability
D. Market-Share Liability Theory
E. Indemnification, Contribution, and Apportionment

1. Active-Passive Indemnity
2. Contribution and Apportionment
3. Apportionment and the Effect of Settlement

F. Rules and Evolving Models in Liability and Enforcement
G. Review and Application of Models

Chapter 12: Attenuated Duty and Causation

A. Introduction
B. Negligence Per Se Redux

1. The Problem in Duty
2. The Problem in Causation
3. The Problem in Public Policy

C. Duty Relationships and Causation Timelines

1. Introduction
2. Frances T. Redux, or Intervening Criminal Acts
3. Mental Illness and Tarasoff Liability
4. Dram Shop and Social Host Liability
5. Rescue Doctrine and “the Fire Fighter Rule”

a. Inverse Rules of Duty
b. Application and Limits

6. Palsgraf: The Orbit and the Stream

a. The Classic Case
b. A Deeper Dig

D. Principles of Duty and Causation

1. Duty
2. Causation

a. The Story of Causation
b. Proximate Cause in the Second Restatement
c. Scope of Liability in the Third Restatement
d. Proximate Cause in the Third Restatement, and Holdover Rules
e. A Study of Transition: Doull v. Foster

E. The Outer Bounds of Tort Law

1. Balancing the Fundamental Elements
2. Negligent Infliction of Emotional Distress (NIED)

a. Rule of No Liability
b. Bystanders and Borderline NIED

3. Economic Loss Rule

a. The Injury Requirement
b. Outer Limits of Tort Law
c. Loss in Product Liability and the Single Integrated Product Rule

Chapter 13: Affirmative Duty

A. Social Policy
B. The American Rule
C. Comparative Perspectives
D. Bystander Effect, or “Kitty Genovese Syndrome”

Chapter 14: Nuisance and Property Torts

A. Trespass and Conversion
B. Private Nuisance
C. Public Nuisance and the Distinction Between Private and Public
D. “Super Tort”

Chapter 15: Communication and Media Torts

A. Origin of “Media Torts”
B. Defamation

1. Framework and Rules
2. Defamation of Private Figures

a. Defamation Proof
b. Defamation Defense

3. Anti-SLAPP Defense
4. Section 230 Defense
5. Constitutional Defamation

a. Sea Change: New York Times Co. v. Sullivan
b. Extending Sullivan
c. Reconsidering Sullivan

C. Invasion of Privacy

1. Framework and Rules

a. Disclosure
b. Intrusion
c. False Light
d. Right of Publicity
e. Data Protection

2. Constitutional Privacy and False Light
3. Demonstrative Cases

a. Disclosure and Intrusion
b. Right of Publicity
c. Bollea v. Gawker Media

4. Data Protection, Common Law, and Evolving Recognition of Dignitary Harms

Chapter 16: Interference and Business Torts

A. Business Torts in General

1. Tort Taxonomy
2. The Broad Landscape
3. Civil RICO

B. Wrongful Termination
C. Tortious Interference

Chapter 17: Government Liability and Civil Rights

A. Sovereign Immunity

1. Federal Tort Claims Act (FTCA) and Foreign Sovereign Immunities Act (FSIA)
2. Text and History of the FTCA
3. Discretionary Function Immunity

B. Civil Rights

1. “Constitutional Tort”
2. Core Framework
3. Official Immunities
4. Climate Change

C. Qui Tam
D. Human Rights

1. Alien Tort Statute
2. Anti-Terrorism Laws

Chapter 18: Tort Alternatives

A. Worker Compensation

1. Introduction and History
2. Elements and Causation
3. Efficacy and Reform

B. Ad Hoc Compensation Funds

Culp's critical perspectives endure in Chang lecture

Prof. Chang
Seattle Law

Professor Robert S. Chang delivered the inaugural Jerome M. Culp, Jr. Critical Theory Lecture at Duke Law School February 1.

Chang is professor of law and executive director of the Fred T. Korematsu Center for Law and Equality at Seattle University School of Law. He spoke on, "How Do We Come to Participate in the Struggles of Those Who Are Not Us?" The lecture is posted at Panopto and on YouTube (embedded below, at bottom).

Chang traced contemporary racial differences in American history from the burning of Jamestown, Va., in the 17th century to the Civil War, Chinese exclusion laws, and, ultimately, the legal battle over affirmative action. Born in Korea, Chang's work emerges from ethnic perspective and personal experience growing up in small-town America.

My alma mater, Duke Law doesn't need me to do public relations. I mention the Chang lecture because of Professor Culp, for whom the lecture series is named. Culp was the first person of color to earn tenure at Duke Law, where he taught from 1985 until his death in 2004. He was, as Duke recounted, an internationally acclaimed critical theorist.

Culp also was my torts professor. As I tell students today, at that time, I didn't well understand Culp's MO. I suffered the common 1L affliction of wanting to know just what I needed to know. I yet saw law as learnable vocation, not profession, law school as mere trade school, not intellectual engagement with law and society. Culp didn't seem to be doing his part to make me a billboard attorney who could litigate a car accident.

I got past those hurdles. In time, I had the immeasurable good fortune of knowing Culp as a fellow academic. I came to understand that his 1L pedagogy was a cleverly subtle and seductive inculcation in critical theory. I came to appreciate him as one of my best law professors. His pedagogy powerfully shaped my approach to teaching torts, not to mention thinking about law and society in general. Culp is one of three academics to whom my Tortz textbook is dedicated.

The start of the Chang lecture video (from 2:05 to 7:50 at Panopto; YouTube cued and embedded below) features Professor Culp himself, some 20 years ago, complemented by affecting images, talking about his own life and how it motivated him to study and teach law.

To be clear, I'm not wholly in agreement with Chang on the merits of his talk, even if Culp might have been. Chang concludes that the U.S. Supreme Court decision contra affirmative action in 2023 represents an "intensification" of white racial identity and resurgent white supremacy. Chang's conclusion contains a kernel of concerning merit, but also provocatively overstates the matter.

I rather agree with what Professor Josh Blackman told an ABA program on viewpoint diversity at the Midyear Meeting in Louisville, Ky., last week: there has to be room to express a view of what the Fourteenth Amendment means, even if contra the acceptable "woke" ideology, without being branded "racist." 

Critical theory to me is, let's say, critical for exposing fault lines in our society that run contrary to our values and demand remediation. Accordingly, critical approaches form vital threads in my teaching.

But critical race theory does more harm than good when it muddies the distinction between malevolent racism and systemic inequality. And many adherents to critical theory (not necessarily Chang or Culp) go a dangerous measure further, encouraging generalizations about persons' intentions based on their skin color. I can't sign on to that.

Nevertheless, that some critical perspectives sit poorly with me doesn't mean we should avoid discussing them. Chang's lecture is a superb and coherent survey of race and American history with thought provoking implications for our time.

A nephew of mine (as a matter of fact, a young man who is racially Korean and grew up in small-town America) recently suggested to me that adults of my (13th) generation can sometimes be wrong.

I'm considering the possibility.

TORTZ volume 2 unpacks duty, causation, damages, introduces nuisance, defamation, privacy

Tortz volume 2 is now available for affordable purchase from Lulu.com and for free PDF download from SSRN.

Tortz volume 2 follows up volume 1 (Lulu, SSRN, The Savory Tort), published in 2023 and pending update this year. I am using Tortz volumes 1 and 2 with students in my American tort law classes in the United States and in Poland this academic year.

The two-volume Tortz textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. In volume 1, the first eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability.

Volume 2 comprises chapters 9 to 15: (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation, (13) affirmative duty, (14) nuisance and property torts, and (15) communication and media torts. 

Contemporary content in Tortz volume 2 includes exercises in pure several liability; treatment of opioid litigation in public nuisance law; recent criticism of New York Times v. Sullivan in defamation law; and exposure to common law developments in privacy law, such as the extension of fiduciary obligations to protect personal information.

Three final chapters will be added to Tortz volume 2 for a revised edition later in 2024: (16) interference and business torts, (17) government claims and liabilities, “constitutional tort,” and statutory tort, and (18) worker compensation and tort alternatives. Any teacher who would like to have copies of draft materials for these chapters in the spring is welcome to contact me.

Tortz is inspired by the teachings of Professor Marshall Shapo, a mentor to whom I am deeply indebted. Marshall passed away in November 2023.

My thanks to Professor Christopher Robinette, Southwestern Law School, who kindly noted the publication of Tortz volume 2 on TortsProf Blog even before I got to it here.

Professor Marshall Shapo leaves extraordinary legacy

Marshall S. Shapo
Northwestern photo by Jasmin Shah

Barukh atah Adonai Eloheinu melekh ha'olam, dayan ha-emet. 

A luminary in American legal education, a brilliant scholar in torts, and a dear mentor and friend, Professor Emeritus Marshall S. Shapo died Friday, at 87, in Chicagoland.

A professor at Northwestern University Law School for more than 40 years, most of his more-than-half-century academic career, Shapo was a prolific scholar and award-winning authority on torts and product liability law. In his books, articles, and teaching, Shapo saw tort law as inextricable from culture, politics, and society. Accordingly, he approached his subject matter holistically, embracing historical, economic, and critical perspectives as all essential, and none alone definitive, to understand the law.

It was that breadth of perspective that prompted me to adopt the second edition of Shapo's Tort and Injury Law as my textbook when I started teaching torts 20 years ago, in 2003. Reflective of Shapo's versatility of mind and insatiable curiosity, his pedagogy challenged students at once with writings in ancient philosophy and religion, and with theories of economics and feminism. References to the Torah appeared alongside excerpts from research in the latest interdisciplinary social science.

I reached out to Marshall in 2003 for guidance in using his book; I did not then suspect that he would become my extraordinary mentor. I was privileged to join Tort and Injury Law as a co-author for the third edition in 2006. My teaching today in torts, and in Tortz, is and forever will be a product of Shapo's worldview. His teaching lives on in my career and classes, and no doubt in the practices and lives of his generations of students and mentees, and theirs in turn.

Yet Tort and Injury Law was a only small part of Marshall's importance to me. Of incalculable value were his insights into academic life, his counsel, especially in times of hardship, and, so often, simply his enduring friendship. As relentlessly busy and productive as he always was, he called me periodically with no agenda, just to check in. However much I wished not to burden him with mundane ups and downs, he somehow, with the skill of a seasoned counselor, elicited my confessions. His humility and wisdom were invariably comforting. Never was there a frustration—a discontented student, a shortsighted colleague—that Shapo had not faced and hurdled already in his career: evidence that I, too, could land well on the other side.

Shapo above else modeled balance of work and life. His obituary honors his surviving wife, Helene—also an inspiring and renowned legal educator—sons, Benjamin and Nathaniel; and six grandchildren and great-grandson.

Appropriately, Shapo's family led off the obituary, before any mention of his career. Marshall himself placed his wife and sons at the top of his CV. Never did I have a catch-up conversation with Marshall in which he did not update me on their well-being. When speaking of grandchildren, he radiated with a joy that not even product liability litigation could evoke. All of his accomplishments and honors as a lawyer and educator meant nothing to him in comparison with his devotion to family.

Marshall, rest in peace.

The Shapo family invites memorial contributions to the American Parkinson's Disease Association, P.O. Box 61420, Staten Island, N.Y. 10306.

Curmudgeon speaks on decline of grammar, civilization

Deteriorating grammar and style conventions signal the crumbling of western civilization.

I'm a grammar-and-style curmudgeon, so take my declaration with a grain of salt. Still, I feel pretty confident about it.

When I was in journalism school, in what was then still called the "print" program, I and my cohort were allowed to make one technical mistake in a story without penalty. 

A freebie. One. Of whatever kind: spelling, grammar, style. After that, the grade plummeted precipitously. I tested the system with carelessness just once, and it was damage enough to deprive me of an A for the semester.

Nowadays I find I have to give student papers separate reads for technical and substance. There are so many technical problems in the average draft that I can't focus on the substance at the same time. I give separate grades for tech and substance, too, before I combine them in a formula weighted in favor of substance.

In fairness, most of my students did not go to journalism school. As American legal education is open to all majors, some students have not written since grade school. Our ranks include accounting majors who took only math-oriented tests in non-liberal arts bachelor's programs. (How is that even a thing?) Where they are on tech is not their fault, but a failure of American K16 education. My foreign students who speak English as a second language usually exhibit better tech skills than the average American 1L—notwithstanding telltale struggle with the confounding rules of definite and indefinite articles.

I'm proud of my daughter, who went to a public school that, exceptionally, emphasized writing. We chose where we live for the school. She didn't love the heavy writing emphasis at the time, and fair enough. But when she went to arts school for university, she was shocked by how poorly prepared her peers were in writing, including those who wished to build careers writing creatively for TV and film. Her skill in writing set her apart, as it continues to in the workforce.

Many students who struggle initially, to their credit, embrace my feedback, readily extrapolate appropriate rules, and greatly improve their writing. Some students masochistically seek out my writing tutelage because they know they've been cheated in their education and want to improve. Of course, a few resent and resist the feedback. The quality of legal writing in the everyday practice of law suggests that they're not wrong about where the norm falls. 

Just spend a few hours in the briefs at any courthouse, and you'll see what I mean. When I started teaching legal writing in 1998, I went to the courthouse in Little Rock, Arkansas, to compile some model practice documents for my students' reference. I found almost nothing I could hold up as exemplary. That was disappointing but educational.

As my reputation precedes me, my 1L students sometimes worry over whether I'll knock them down for grammar on final exams. I won't, I tell them, unless a misusage creates ambiguity or otherwise impedes the reader's understanding. That does happen. But even I have now and then mistyped a "your" instead of "you're" when writing under time pressure, phonetic ideation direct to fingers. Timed exams are not research papers or practice documents.

UCLA Law Professor Eugene Volokh wrote ably for Reason earlier this week on the use of "they" as a singular pronoun. Like his academic legal writing, his Academic Legal Writing is superb, and I routinely recommend it. Like he, apparently, I have long counseled students on ways to avoid singular constructions that invite the problem of generic gendered pronouns. When working over the text doesn't work—sometimes, the difference between singular and plural is required by legal precision—I recommend "he or she," however cumbersome.

Nowadays the problem of singular "they" bleeds into the issue of gender identity. I am sympathetic with how that "they" emerged amid the failure of "ze" or another creative alternative. When that "they" is used, it is treated grammatically as a plural, even if the person is singular. I'm not here opining on that issue. Professor Volokh gave the best advice, anyway: essentially, know your audience.

I give students the same advice generally. Maybe the judge in your case was an accounting major and will be satisfied as long as you can string sentences together into recognizable paragraphs. But maybe your judge is a curmudgeon. If a student needs a better reason to know the rules than because they're the rules, then it serves to know that it might pay, literally, to be highly fluent in the lingua franca.

I've been thinking about this not only because of Professor Volokh's item, but because I returned to my home state of Rhode Island last week to be confronted with two curiosities on newspaper fronts at my local grocery store.  Here's the Barrington Times of August 13:

Barrington Times, Aug. 16,  2023: "'None of these fields are getting rest.'"

This headline is not necessarily wrong, for a couple of reasons. But it gave me pause, frozen for a time in the grocery store portico.

The conventional wisdom is that the word "none" is a contraction of "not one." So, like "one," usually, "none" should take a singular subject. The line should be, then, "None of these fields is getting rest."

At the same time, what we might call "linguistic originalists" point to a long history of English-language usage tolerating both singular and plural treatment of "none." The rule oft recited today is that "none" should be treated as a plural when it reads as "not any," or when the range of things to which it refers is plural. So if the subject of the headline is "not any of these fields," then "are" is suitable.

I find that rule profoundly unhelpful, because there is no real difference between "not one" and "not any."  "Not one" almost invariably refers to a range of multiple candidates. Many sources on grammar give examples in which plural usage pertains to the subject structure "none of [them/these/etc.]," but that's not a sensible distinction either. The headline statement here is wholly equivalent to "none is getting rest," were the line to appear in a context in which the adjectival phrase "of these fields" were unnecessary for clarity.

Other sources use a flexible rule in which the writer chooses based on emphasis. Treating the subject as singular emphasizes the singularity. That's hardly a rule. But if it pertained, I would contend that the above usage is wrong. For if one field were rested at any given time, there would be no newsworthy assertion that a new field is needed.

I recognize, too, by the way, that the headline is a quote. According to my old-school journalistic rules, a quote can be changed to make it grammatically correct, as long as the grammatical error is not salient to the story. The theory behind the rule is that the ethic of truthfulness yields to the principle of doing no harm (embarrassment) to persons identified in stories. At some point, that approach presents policy challenges around dialect, cultural vernacular, and education policy. But none of those reasons here would preclude changing the quote.

Regardless of where one comes down on the Barrington Times headline, I contend that the treatment of "none" as plural is now widely reflexive. And legal writers do themselves a forensic disservice by failing to consider the choice. If "not one" is the salient concept, then the treatment should be singular. A writer in argument, especially, might be served best by the singular, or even by regressing "none" to its ancestor: for example, "Not one of the bystanders was capable of aiding the plaintiff" is a more potent declaration than "none were," because the former usage emphasizes the existence of multiple counterfactuals.

Here's another front page, from The Rhode Island Wave:

The Rhode Island Wave, Aug. 2023: "Liquor World: Now Open In It's Newest Location."

The subhede on this ad reads: "Now Open / In It's Newest Location."

This is an easy one, and it's definitely wrong. "It's" is a contraction for "it is." The headline does not say, "In It Is Newest Location." The "it's" is rather a possessive and should be "its."

I recognize that the Wave is a free advertiser, and the copy in question appears (horrifically, atop the front page) in an ad. In my book, which, we've established, is unrelentingly curmudgeonly, that doesn't let the editor off the hook. (Just ask The New York Times.) The fact that the Wave is a free advertiser might, though, explain the quality of the journalistic editing.

I see "its"/"it's" errors all the time. It's disheartening. I get that "it's" is initially confusing, because, especially in formal writing, we are accustomed to apostrophes appearing in possessives more often than in contractions. But then you learn the rule, you turn six, and life moves on.

At risk of exceptionalism, I believe that the American model of law as graduate education, open to a full range of undergraduate majors, is a strength of the American legal system. Our bar is populated by a gratifying diversity of knowledge bases, skill sets, and life experiences that are little known in the five-year LL.B. model.

At the same time, and as long as our four-year higher ed system permits disciplinary focus to the exclusion of liberal arts, we in legal education bear a burden to teach American law students how to speak and write in what is for most of them their native tongue.