The Pedagogical Goals of Law School Classes:

Here are some materials I put together for my first-semester torts students, aimed at explaining some things that students often find mystifying and frustrating about law school (such as, why aren't we just learning the rules?). My thinking is that students are generally happier if they understand that we have good reasons for certain pedagogical choices, and that they often accept the validity of those choices once we tell them what the reasons are. Maybe I'm living in a fool's paradise on this, but that's been my sense from when I've done this before.

I thought I'd also pass these thoughts along here, in case some of you find them interesting. And if you have some more items along these lines that you think first-year students would find helpful, please do mention them.

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What will you be asked to learn in the next three years, and in this class in particular?

1. The Law: Many class sessions — both in torts and in other classes — will be spent learning particular legal rules. And these rules may well prove useful in your future practice, even if you don't become what most people think of as a "tort lawyer," which is to say someone who does personal injury law. Lots of business litigation involves torts, such as misrepresentation, interference with business relations, trade libel, and the like. And many of the concepts from traditional personal injury torts cases apply to business torts cases as well.

2. Concepts: A second answer is basic legal concepts, reusable modules that come up in many contexts: negligence, causation, joint liability, mental state, and the like. You'll see them again in criminal law, in First Amendment law, in the law of copyright damages and contributory infringement, and elsewhere.

3. Skills: You will also be learning legal skills.

a. Reading cases: One important skill is reading cases. This is what you need to do to figure out what the rules are. We can teach you California tort law as it is in 2009; but what if you need to give legal advice ten years from now, in another state, about some subject matter you never studied in law school (for instance, employee benefits law)? Learning the skill of reading cases is therefore more important that just learning the rules.

Moreover, even if you think you know the rule, you'll need to read the cases to figure out what the elements of the rule really mean in a particular situation. We can teach you that the tort of "disclosure of private facts" consists of "giv[ing] publicity to a matter concerning the private life of another ... if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." But what do those terms actually mean? Would, for instance, an 11-year-old girl's giving birth to a child be "of legitimate concern to the public"? You can only answer the question by looking at how cases have interpreted the vague "legitimate concern" language.

And you'll need to read the cases to figure out how best to argue in the direction that your client needs you to argue. Sometimes there might not be a clear answer given by the cases. You'll therefore need to argue by comparing your scenario with those in past cases.

b. Analogy and distinction: The last point about reading cases leads us to a separate skill: making analogies, and drawing distinctions, between the case before you and past precedents. This is a quintessentially lawyerly skill (at least in countries which use the Anglo-American legal system). Math classes, for instance, generally call on you to solve a problem by applying basic mathematical principles, or deriving the principles and then applying them. It's helpful to see the similarities and differences between this problem and past ones, but chiefly because seeing them can help point you towards the right principles to apply.