School
of Law
3301
North Fairfax Drive
Arlington,
Virginia 22201
Michael I. Krauss
Professor of Law
Introduction
"Torts is at once one of the simplest and one of the most
complex areas of the law. It is simple because it concerns itself
with fact patterns that can be understood and appreciated without the benefit
of formal legal instruction. Almost everyone has some opinions, often strong
even if unformed, about his rights and responsibilities towards his fellow man;
and almost everyone has had occasion in contexts apart from the judicial
process to apply his beliefs to the question or responsibility for some mishap
that has come to pass....
"But the simplicity of torts based upon its use of ordinary
language is deceptive. Even if ordinary language contains most of the concepts
that bear on questions of personal responsibility, ... more is required for the
solution of those difficult cases where the use of ordinary language pulls in
different directions at the same time. There is need for a systematic inquiry
which refines, but which does not abandon, the shared impressions of everyday
life. The task is to develop a normative theory of torts...."
Family law examines cases where blood or marriage ties result in
obligations to others: Contract law
looks at situations where certain voluntary
promises create legal obligations. In Torts,
classically, neither family
relationships nor promised obligations exist. When no promise has been made,
and thereÕs no blood tie, why, when, and to what extent
should one citizen ever be liable to
another?
The
main purpose of this course is to enable you to provide, in light of the case
law and doctrine you will read, your own considered and coherent answer
to the question posed in the preceding paragraph. The difficulty of this
enterprise is matched, I think, only by its interest and importance. Moral
philosophy, political theory, and economic analysis will arguably have a lot to
say here, and these disciplines will not
all pull in the same direction in every case.
"Torts"
is a French word that means "wrongs" [French used to be the language
of the English courts, as we will see – lots of Common Law terms are
French.]. We will be examining the legal consequences of the commission of
"obvious" wrongs such as battery, drunk driving and medical
malpractice. We will also look at emotionally charged "current event"
wrongs such as sexual harassment, racial slurs and infliction of second-hand
smoke. We will examine whether and to what extent Tort law should address these wrongs, as well has how Torts does address them. We will conduct
these normative and positive discussions without any "politically
correct" classroom self- censorship. I mean that: do not be offended
by frank intellectual discussion of, for example, rape, cross-burning or
anti-Semitic taunting – you may one day be obliged to discuss these acts
in a courtroom! The classroom is
the forum par excellence for frank
expression of views, and I will not tolerate "PC" censorship of or by
anyone. If you find frank
discussion off-limits, you have chosen the wrong field of study.
Required texts:
1. EPSTEIN, Cases and Materials on Torts (Aspen, Ninth Edition, 2008)
(hereafter called "The Casebook"). This book is widely available on
Amazon.com and related sites, for well below list price. Feel free to purchase a used book
(though distrust any annotations!).
No one should have to pay list price for this book.
The Casebook is crafted for an eight-credit-hour two-semester course. At George Mason our course is four credits over one semester. Thus, the entire book will not be covered. We will go through the Casebook in the following order (selective pages in several chapters being omitted):
Chapter 1-8, Chapter 10
2.
WERTH, Damages (Berkley,
1999)
This book is a journalistic case study of a medical malpractice
case, from start to finish. It
incorporates many of the lessons of the casebook, and highlights many ethical
issues involved in tort lawyering.
The must be read in its entirety.
Reading it too soon (before you have tort concepts firmly at hand) is
counter-productive, so even though the book is a
faster read than the casebook, don't read it just yet (unless you want
to read it twice). I suggest
reading this book between Oct. 15 and Nov. 15. In mid November we will hold one or two
classes to discuss the book, and we will hopefully be
assisted by a Virginia attorney with considerable medical malpractice
experience.
All
compulsory readings will be indicated on the "Calendar" page of the
TWEN site [see immediately below].
These readings must be done before the corresponding
class. [See "Grading", below]
Other
Torts material is seen the Tort Theory Seminar, an advanced elective offered by
me every other year at GMUSL, and in Products Liability, which I also teach. My hornbook Principles of
Products Liability was published in January 2011 by West.
Additional readings/ TWEN
Virtual Classroom:
During
the term "outside" cases and readings will often be mentioned. Some
will be hot-linked on TWEN [The Westlaw
Educational Network], the online Òvirtual classroomÓ in which you all must
enroll immediately (get help from Library staff if you donÕt know how to do
this). Outside readings will be labeled useful
(i.e., helpful if you are interested in a particular point), suggested (i.e., you will not be
required to have read them for exam purposes, but they are extremely
beneficial to help understand a problem), or compulsory (you will be deemed to have read and
understood them for exam purposes).
TWEN
is an integral part of this course. I will post cases and raise new issues for discussion on TWEN.
You and I will also post comments and continue classroom discussion. There will be things on TWEN that are
not discussed in class.
Excellent
participation in TWEN will be considered for grading purposes (see
"Grading", below).
Most
interesting doctrinal material about Torts is contained in law review articles
as opposed to full-length books. If you are interested in a particular topic, I
will be glad to suggest readings for you.
ÒUsefulÓ
(as per the description above) books include:
Bell
& OÕConnell, Accidental Justice,
1997
Krauss,
Fire and Smoke: Government Lawsuits and
the Rule of Law, 2001
Krauss,
Principles of Products Liability,
2011
Owen
(ed.), Philosophical Foundations of Tort
Law, 1995
Weinrib, The Idea of Private Law,
1995
Office Hours:
I
will remain in the classroom after each day class for all trailing questions,
until or unless we are kicked out by another class.
Office
Hours (Room 316) are every Wednesday from Noon until 4:00 PM. No appointment is
needed to see me during office hours. I look forward to meeting many (hopefully
all) of you during office hours.
Feel free to bring snacks or drinks to my office.
To
schedule appointments outside office hours, e-mail me at mkrauss@gmu.edu.
Computer Policy, Class
Attendance, Grading, and Class Participation Adjustments:
Note: no
laptops are allowed in the classroom.
All note-taking must be pen-to-paper. I will post an article on TWEN
explaining my decision – I reached it several years ago after long
deliberation, and students almost unanimously approve this decision in their
evaluations at the end of the year.
This course
is taught using the Socratic method: I ask questions of you, and your answers
prompt additional questions (by me or by your peers). Our progress crucially depends on your
ability to answer questions posed.
Hundreds of questions are posed in the casebook; hundreds of different
ones will be posed in class. Not
every question in the casebook or other compulsory readings will be posed in
class – but all are subject to be tested.
At my discretion, to determine your final grade the exam result
may be raised by one grade level for exceptional
class participation. The exam result may also be lowered by one grade level for
unacceptable class
participation. What are these
things?
á
Exceptional class participation is more a
function of high quality than of quantity of interventions. Those whose
recurrent contributions advance class discussion, in class and/or on TWEN, will
receive a "bump up." This is obviously a judgment call, and by
definition wherever I draw a line someone will fall just short of it. If you
donÕt get the bump up, it's not an insult – remember that I am bound by a
mandated law school mean, so the more the bumps up I give, the lower the mean exam
grade must be.
á
I often ask for volunteers, but during every class session I will
also randomly call on students from a deck of cards with studentsÕ names on
them. The deck is shuffled every day, so you may well be called on two or more
days in a row, or you may not be called on for weeks – it's the luck of
the shuffle. As noted above, you
are required to have completed assigned readings before class. Not being
prepared for class when called on, even once, constitutes unacceptable class participation unless
you have taken a "pass" (see immediately below).
á
If youÕre not prepared for a class, tell me before the
start of that class, by email or by approaching the podium before I get
started. IÕll give you a "pass"; i.e., I wonÕt call on you that day
and you will in no way be penalized. Only one "pass" is available
to each student during the semester. To repeat, the ÒpassÓ must be invoked
before the start of class.
Compulsory reading for the
first session:
-Casebook,
pp. 1-9 [We will look at approximately 25 pages per class, on average, but
this first session entails some "housekeeping."]
-Documents,
on TWEN, indicating how to read a case, and detailing the procedural steps in a
Torts suit.
-Finally,
be prepared to discuss the following problem: [Remember, the course is Socratic
– our discussion of this problem depends crucially on you.]
Is
there any wrongful behavior that
should not result in Tort liability? Here are examples of wrongful behavior
some people believe should not be sanctioned in Tort:
á
Mistreatment of oneÕs own child.
á
Seduction of a married person.
á
Reneging on a promise.
á
Cruelly killing a wild animal, or oneÕs own animal.
á
Lying.
Why
should any of these instances, or others, be exempt from Tort liability? Or
should all wrongful acts be covered by tort?