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 all arguably have a
lot to say here, and these disciplines will not
all pull in the same direction in every case.
"Torts"
means (in French) "wrongs". 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 like 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 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. 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"). Only the Ninth Edition, NOT any older editions, may be used.
The Casebook is crafted for a maximum of eight-credit-hours. At George Mason our course is four credits. 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, and parts of 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
counterproductive, so don't read it just yet. I suggest reading this book between Nov. 1 and Nov. 8. In late November or early December we
will hold one or two classes to discuss the book, and we will
hopefully be assisted by a prominent Virginia medical malpractice attorney.
All
compulsory readings will be indicated on the "Calendar" page of the
TWEN site [see ÒAdditional readings/ TWEN Virtual ClassroomÓ 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. I
am currently writing a Products Liability textbook for West Publications.
Additional
readings/ TWEN Virtual Classroom:
During
the semester "outside" cases and readings will quite often be
mentioned. Some will be hot-linked on TWEN [The
Westlaw Educational Network], the online Òvirtual classroomÓ in which you
all must enroll as soon as possible (Library staff can help you to do this).
Outside readings may 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.
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.
Relatively recent 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
Owen
(ed.), Philosophical Foundations of Tort
Law, 1995
Sugarman, Doing Away with Personal Injury Law, 1989
Weinrib, The Idea of Private Law,
1995
Office Hours:
I
will remain in the classroom after each day class for trailing questions, until
or unless we are kicked out by another class.
Office
Hours (Room 316) are every Wednesday from 12:00 – 5:00 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, leave a message
e-mail at mkrauss@gmu.edu -- I'm flexible if given advance notice. You can reach me by
phone at 993-8024 but email works better.
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 on
this count – I reached it three years ago after long deliberation, and
students have almost unanimously approved this decision in their evaluations.
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). Your silence will lead me
to pass on to other things. Our
progress crucially depends on your ability to answer questions posed and to
pose questions yourself. Hundreds
of questions are posed in the casebook; hundreds of additional questions 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 result may also be lowered by one grade level
for unacceptable class participation.
What are these things?
á
Exceptional class
participation is a function of high quality rather than of quantity of
interventions. Those whose regular 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, it's not an insult –I am bound by
a mandated law school grade point mean, so with too many bumps up, exam grades
must be lower.
á
I often ask for volunteers, but during class sessions I just as
often call on students from a deck of cards with your 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, even
once, constitutes unacceptable class
participation UNLESS you have taken a "pass" (see immediately
below).
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. To repeat, the ÒpassÓ must be invoked before the start of
class.
Compulsory reading for the
first session:
-Casebook,
pp. 1-10 [We will look at approximately 25 pages per class, on average, but
this first session entails some "housekeeping."]
-Two
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.]
Is there any wrongful
behavior that you feel 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 without justification.
Why should any of these instances, or others, be exempt from Tort
liability? Or should all wrongful acts be covered by tort?