I've finally finished my syllabus and supplemental readings for the Torts class I'll be teaching this Fall; if you want to take a look, it's here. I try to create pretty detailed syllabuses for my first-semester students, in which I discuss the pedagogical goals for each unit and often pose questions or give background information; that ends up being about a page per unit, which together with the supplemental readings and some preliminary materials means I've had to produce 104 pages. A lot of work up front, but I think that it pays off during the semester.

In any case, I thought I'd mention what we'll be covering. We'll begin with trespass, and the defense of necessity. We'll go on to negligence, causation, strict liability, product liability (which is partly strict liability and partly negligence), and nuisance. We'll do damages, contributory and comparative negligence, and assumption of risk. We'll then cover intentional infliction of emotional distress, intentional interference with contract, intentional interference with prospective economic advantage, alienation of affections and criminal conversation, disclosure of embarrassing facts, and the right of publicity.

That's a lot of coverage, but the class is 5 units (i.e., 250 minutes per week) and runs 14 weeks. The readings thus end up being only 6 to 7 pages per unit, pretty modest as law school readings go. And I hope it gives students exposure to a wide range of concepts and principles that arise routinely in tort cases, including business tort cases and not just personal injury cases. (If I had still more time, I'd have liked to include some of the falsehood-based torts, such as fraud, negligent misrepresentation, and trade libel.) If you're curious, check out the syllabus.

UPDATE: Note that the view at UCLA is that our classes aren't primarily aimed at preparing students for the bar, though we hope that the concepts and skills we teach will help them on the bar. Likewise, while we tend to focus on areas that are practically important -- which is why I don't include battery, for instance, but I do include the interference with contract and business relations, as well as the basic negligence and strict liability cases -- that isn't our only goal.

Rather, we will sometimes (1) include a topic that is a good vehicle for exposing students to certain concepts or policy arguments, even if it's not that practically important, and (2) not include a topic that is practically important but that uses concepts that we think are covered well elsewhere, and that practicing lawyers can therefore easily pick up on their own. Plus we'll sometimes cover some fields just because we think they're especially likely to excite students and thus produce an interesting class discussion of the broader issues.

That, for instance, is why I haven't included conversion, but included alienation of affections (which in case takes up less than one day). As to libel, my worry is that it would take too long to cover it adequately, plus much of it is covered in most First Amendment law classes. I've therefore decided to cover the communicative torts via the right of publicity and the disclosure of private facts tort, which are more manageable, and which also involve live current policy debates among the courts in a way that libel law doesn't.

By the way, here's what I say in my syllabus about the alienation of affections and criminal conversation. I hope the "pedagogical goals" section helps explain why I've decided to include it, though part of the reason is just that it's a fun subject that's likely to get students excited, which is especially important late in the semester.

Alienation of affections basically consists of a defendant's (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff's spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child's best interest such behavior might not be "wrongful." In practice, it has generally been applied to lovers who seduce one spouse away from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant's attentions). The related tort of criminal conversation basically consists of a defendant's having adulterous sex with plaintiff's spouse; but for our purposes, we'll treat that as a subset of alienation of affections (which is indeed the approach in some states).

These torts have been largely abolished, but remain recognized in Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. And they are not infrequently litigated, especially in North Carolina: A 2006 article in the Greensboro News & Record reports that "People filed an average of 245 such suits per year in North Carolina between 2000 and 2005, according to data provided by the state Administrative Office of the Courts."

By way of comparison, the well-established right of publicity tort seems to be litigated much less often (2 cases since 2000 in the NC-CS and NC-TRIALORDERS Westlaw databases, as opposed to 38 for the alienation of affections). Even on a national basis, an ALLCASES search for sy("right of publicity" ((misappropriat! appropriat!) +5 (name likeness image))) & date(> 1/1/2000) yielded 150 cases, while sy((alienat! +3 affection) "criminal conversation") & date(> 1/1/2000) yielded 66, of which 50 were in jurisdictions that still recognize one or both of those torts. So there's life in this old tort yet, though query whether there should be.

Pedagogical goals: (1) Throughout most of the class, we've discussed how tort law has substantively expanded, so that formerly nontortious behavior is now treated as tortious. It's easy to assume, even unconsciously, that this trend is natural, irreversible, and right. But these torts help illustrate that torts could also be abrogated, either through judicial or statutory decision. (This has also happened in narrower contexts as to negligence and strict liability—consider, for instance, some tort reform proposals that have capped damages.) And considering the rejection of these torts might lead us to ask, especially in the coming units: Should any other torts be rejected or dramatically narrowed as well?

(2) The rejection of these torts also leads us to ask: Why would courts or legislatures reject liability for behavior that is pretty clearly wrongful (which adultery is, even if some forms of alienation of affections might not be), and that is pretty clearly emotionally damaging to the victim? Did they conclude that the damage wasn't real enough, because it isn't physical? (That would also bear on some of the other torts we've been discussing in the last few units, and that we'll discuss in the coming units.)

Did they conclude that the behavior should be within people's zone of liberty? (Why would that be so, about adultery? Also, should the same rationale apply to some of the other torts we discuss below?) Did they conclude there were especially severe problems of proof for these torts but not others? Did they have any other reasons?

(3) And we should be open to the possibility that the progress of the law here has been mistaken, and should be reversed. Should states readopt the torts. Why, or why not?

With thanks to the Administrative Office of the North Carolina courts, and to Stephanie Plotin of the UCLA Law Library, I can report some data on alienation of affections lawsuits in North Carolina: In fiscal years 2000-2007, there were an average of 230 such filings per year -- a bit over 0.5% of the number of all divorces, but about twice the number of product liability lawsuits, and about three-quarters of the number of wrongful death lawsuits.

Unfortunately, the table doesn't have separate categories for other torts, so I can't compare to, say, slander lawsuits and the like. The Administrative Office also stresses that this is an unverified, preliminary report; and one can certainly see how the data might be skewed in various ways, though likely in the direction of underreporting (for instance, lumping it under the general category of "intentional torts") rather than overreporting.