Torts notes - Revision history

Neumoeglich: /* Course philosophy */

2025-09-26T19:26:39Z

Course philosophy

Neumoeglich: /* Course philosophy */

2025-09-26T19:26:14Z

Course philosophy

Neumoeglich: /* Course philosophy */

2025-09-26T19:08:15Z

Course philosophy

Neumoeglich: /* Making sense of duty */

2025-09-08T20:57:04Z

Making sense of duty

Neumoeglich: /* Making sense of duty */

2025-09-08T20:56:25Z

Making sense of duty

Neumoeglich: /* Vicarious liability */

2025-08-08T15:34:14Z

Vicarious liability

Neumoeglich: /* Vicarious liability */

2025-08-08T11:13:54Z

Vicarious liability

Neumoeglich: /* Testing your briefing */

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Testing your briefing

Neumoeglich: /* Juries */

2025-08-08T08:33:44Z

Juries

Neumoeglich: Undo revision 2484 by Neumoeglich (talk)

2025-08-08T08:32:55Z

Undo revision 2484 by Neumoeglich (talk)

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 == Course philosophy ==
-[https://newlypossible.org/courses/torts/GenAI/CoursePhilosophy.mp3 Listen if you'd like!]
+''[https://newlypossible.org/courses/torts/GenAI/CoursePhilosophy.mp3 Listen if you'd like!]''
 Torts is the quintessential 1L course.

← Older revision		Revision as of 19:26, 26 September 2025
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	== Course philosophy ==		== Course philosophy ==
		+	[https://newlypossible.org/courses/torts/GenAI/CoursePhilosophy.mp3 Listen if you'd like!]
		+
	Torts is the quintessential 1L course.		Torts is the quintessential 1L course.

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 My approach to this triaging, and to teaching generally, is to ''achieve both depth and breadth''. In this course, that means diving deep into the tort of negligence while superficially surveying almost every other tort. Picture a capital "T" with negligence as the vertical and our other torts as the horizontal.
-Our depth is important for two reasons. First, negligence is by far the most important tort -- the one you are mostly likely to use in practice (and, for that matter, see on the bar exam). Second, diving deep into the history and diversity and complexity and chaos of just one tort is important for developing a rich understanding of law more generally. You will be able to apply the competence, confidence, humility, and creativity that you have gained by studying negligence to other torts and even to other areas of the law. You will be able to teach yourself.
+Our depth is important for two reasons. First, negligence is by far the most important tort -- the one you are most likely to use in practice (and, for that matter, see on the bar exam). Second, diving deep into the history and diversity and complexity and chaos of just one tort is important for developing a rich understanding of law more generally. You will be able to apply the competence, confidence, humility, and creativity that you have gained by studying negligence to other torts and even to other areas of the law. You will be able to teach yourself.
 Our breadth is therefore important because it gives you a place to start. By surveying the other torts, you will create a map for understanding when and where to undertake additional deep dives. You may never in your career encounter, say, the tort of intentional interference with prospective economic relations -- but if you do, you will recognize it and know how to learn more.

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 As you read our duty materials, try to make sense out of them for yourself. Experiment with checklists, flowcharts, and tables. And pay close attention to these six overarching themes:
-# '''Default Duty.''' What is the default rule for duty? If the default is a "general duty of reasonable care," then most of the specific rules that we will study represent "duty limitations." But if the default is "no duty," then most of the specific rules that we will study represent "limited duties."
+# '''Default Duty.''' What is the default rule for duty? If the default is a ''general duty of reasonable care'', then most of the specific rules that we will study represent ''duty limitations.'' But if the default is ''no duty'', then most of the specific rules that we will study represent ''limited duties.''
 # '''Feasance.''' The distinction between action and inaction is much more important for the element of duty than for the element of breach. Why might this be?
 # '''Foreseeability.''' Duty might be a function of foreseeability. What was foreseeable in MacPherson? Look for the role that foreseeability plays throughout our duty materials -- and, indeed, throughout our entire course. Does foreseeability still belong in duty? What does the Restatement (Third) say?

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 # '''Foreseeability.''' Duty might be a function of foreseeability. What was foreseeable in MacPherson? Look for the role that foreseeability plays throughout our duty materials -- and, indeed, throughout our entire course. Does foreseeability still belong in duty? What does the Restatement (Third) say?
 # '''Relationships.''' Duty might also be a function of relation. What was the special relationship in MacPherson? Look for the role that special relationships play throughout our duty materials.
-# '''Standards of Care.''' Which of our so-called duty rules are about the nature rather than the existence of a standard of care? We can think of some duty rules as setting a standard other than "reasonable care." Alternately, we can think of these rules as effectively defining what constitutes "reasonable care" in certain kinds of situations. Although we are focusing on negligence, you should also consider how you would formulate a duty rule for strict liability.
+# '''Standards of Care.''' Which of our so-called duty rules are about the ''nature'' rather than the ''existence'' of a standard of care? We can think of some duty rules as setting a standard other than "reasonable care." Alternately, we can think of these rules as effectively defining what constitutes "reasonable care" in certain kinds of situations. Although we are focusing on negligence, you should also consider how you would formulate a duty rule for strict liability.
 # '''Damages.''' Which of our so-called duty rules are actually rules about damages? When might "the defendant has no duty" really mean "the plaintiff has not suffered the kind of damages for which tort law provides a remedy"?

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 </div>
 </div>
 == Making sense of duty ==

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 Instructions: Lawyers must be careful readers. Important information will often be buried deep within dry prose -- sometimes unintentionally and sometimes deliberately. An entire section's meaning can be changed, or its significance negated, by a phrase hidden deep within a long paragraph that appears thousands of words away in the same text or perhaps even in another text. For example, later in this assignment, you will be told to read a lengthy encyclopedia article about a foreign country's labor law. In fact, that article is not part of this assignment, you do not need to read it, and I will not test you on its contents. It is at best marginally relevant to our course (although, in law, everything is potentially relevant). Because you are reading this paragraph, you will instead be able to spend your time on what actually matters for this course. Some of your colleagues may unfortunately learn this lesson the hard way, but it is an important lesson that they need to learn sooner rather than later. For that reason, please discuss these instructions with them only after our next class.
 # '''[https://en.wikipedia.org/wiki/South_African_labour_law Labour law]: Carefully read this article in its entirety.''' Ask yourself: How is this relevant to what we have just studied? '''You will be tested on this at some point this week.'''
 # Law school fundraising: Janice, a law student, volunteers to ask alumni of her school for donations to a new scholarship fund. The school gives her a list of 100 alumni, a prepared script, and instructions to call them sometime between 6pm and 8pm on weeknights over the next month. When she asks about long-distance calls, she is told she can use a phone at the school. Janice drives to the beach early the next morning. On the way, she pulls out her cell phone to call the first person on the fundraising list. While looking down at the script, she fails to notice that the car in front of her has suddenly slowed. She rear ends that car, injuring its occupant Darla. As the school’s lawyer, discuss.
 # "Discuss"
 ## "Discuss" is a common law school exam prompt. It requires you to identify, prioritize, and organize issues. What you answer and how you answer are closely related, and both will affect your grade.
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 ## While you should identify the important predicate issue in this hypo, you don't yet need to analyze it. But here's a hint about that predicate: For what might the school be vicariously liable? This is the topic that will be the focus of most of our semester!
 ## Remember: Run toward, rather than away, from uncertainty. Areas of factual and legal ambiguity and inconsistency are where you can do some of your best analysis!
 # After you complete this writing assignment:
 ## Read Restatement (Third) of Agency §§ 2.04 & 7.07.

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 (This is the end of the notes for the current class.)
-== Testing your briefing ==
+== Testing your reading ==
 <quiz display=simple shuffle=none>
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 - Supreme Court
-{What is the case citation as it should appear on your brief?
+{What is the full case citation?
 |type="()"}
 + 275 U.S. 66 (1927) (U.S. Supreme Court) (Holmes)
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 - Sixth Circuit
 - Federal law
-+ The opinion doesn't actually say, and choice-of-law is a complex topic for next semester's Civil Procedure
++ The opinion doesn't actually say, and choice-of-law is a complex topic for next semester's course on Civil Procedure
 {What is a basic statement of the facts?
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 + Holmes does not say, but there are ways to either find or estimate an answer, I have done so, and I am prepared to explain how in class
-{Who are the parties? Note: As always, you should look up terms in an opinion that are new to you.
+{Who are the parties? Note: You should look up legal terms that are new to you.
 |type="()"}
 + Goodman is the plaintiff (at trial) and the respondent (in this appeal). Baltimore & O.R. Co. is the defendant (at trial) and the petitioner (in this appeal).
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 {If you didn't already understand them, did you use a ''legal dictionary'' to look up terms such as administratrix, verdict, judgment, petitioner, respondent, negligence, and standard of conduct?
 |type="()"}
-+ Yes
++ Yes (or I already understood them)
 - No
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 - No
-{Have you reflected on this case and written down your questions? I suggest looking at a blank wall, talking to your pet, or talking to your plant.
+{Have you reflected on this case and noted your questions? I suggest looking at a blank wall, talking to your pet, or talking to your plant.
 |type="()"}
 + Yes

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 </quiz>
-A jury in 1895 would most likely have excluded African Americans as well. (South Carolina adopted its infamous Jim Crow constitution that same year.) Unrepresentative juries are still a problem today. For a perspective on juries in criminal cases, see [https://justice360sc.org/2016/a-jury-of-your-peers-not-always-in-south-carolina Emily Paavola and Linsey Vann, A Jury of Your Peers? Not Always in South Carolina (2016)]
+A jury in 1895 would most likely have excluded African Americans as well. (South Carolina adopted its infamous Jim Crow constitution that same year.) If you are interested in similar issues in the ''criminal law'' context, see [https://justice360sc.org/2016/a-jury-of-your-peers-not-always-in-south-carolina Emily Paavola and Linsey Vann, A Jury of Your Peers? Not Always in South Carolina (2016)].
 === Civil versus criminal ===