Torts Evening - Fall 2007
Professor Ralph Brill
Course Information
Course Information




I always start out orientation lectures by asking a student: “What is the purpose of the law school? “

Beginning students usually answer with something like "to teach me THE LAW" --- which they usually define as the "rules and regulations for governing people's conduct."

To a certain extent that's correct. You will be expected over your three or four years to gain an understanding of a significant body of legal doctrine.

But the school's purpose is much more than that!

For one thing, the phrase "THE LAW" is very misleading. Friends and relatives are always amazed when they ask me a legal question and I answer with something like "a court might find..." or "some courts might hold X... while others would find Y..." or "one can logically argue that ...." They think I’m kinda stupid for not knowing the definitive answer. (Maybe they are right?) They think there's a big book someplace containing the answers to all legal questions.

Unfortunately for law students, no such book exists! The law is not certain; it is highly complex, is ever-changing, is difficult to predict, and it is hard to apply.

(1) We have 50 states, plus a federal system. Each jurisdiction has its own constitution, legislature, court system, and regulatory agencies. Nothing requires any of them to agree with the others. What may be THE LAW on one set of facts in Illinois is not necessarily THE LAW in Indiana, and Michigan may disagree with both of its neighbors. For example, a few years ago, New Jersey ruled that a social host who throws a party at which a guest becomes intoxicated can be held liable when that guest negligently drives a car, injuring a third person; most other states have not agreed with that view; another court recently took an intermediate view and allowed liability if the guest was a minor. So throughout law school, you will be reading references to various views, sometimes called the 'majority' and 'minority' views, sometimes as new 'trends'. So it is difficult to say law schools teach THE LAW because the legal principles themselves are so often different from jurisdiction to jurisdiction.

(2) Moreover, even in the same state, what may be THE LAW on one set of facts may not be the result when the facts are altered even slightly. In most states, it makes all the legal difference in the world (a) whether the person who trips over your child's roller skates while walking up the front stairs is the next door neighbor coming to borrow sugar or is the meter reader; (b) whether the agreement you make to purchase an electrical appliance is for $499 or is for $500; (c) whether your wealthy relative leaves you property "so long as you refrain from smoking" or instead phrases it as "but if you ever take up smoking again, the money shall go to Y instead." THE LAW is not certain then because different rules may apply to different facts. You will spend a lot of class time differentiating fact situations....analogizing to or distinguishing cases you have read from new cases or hypotheticals presented by the professor.

(3) In addition, even on the same facts and in the same state, THE LAW may change as society changes. First, state and federal legislatures enact thousands of new statutes every year, changing the existing law. But the Common Law -- the law derived from judicial opinions -- also changes. The name "the common law" derives from the underlying precept that judges do not create or make law, as legislators do; rather, they “find it” in the common view of society . When faced with an issue of “first impression,” judges seek to discover what society would deem fair and just in the circumstances involved in light of a multitude of social policy considerations. So, the common view of society often may change as society changes, and the law may therefore change to reflect these new views.

You may see one example of this in the field of Torts, specifically in the area of products liability. In the 1800's, society in England (from which we got much of our early common law) and this country felt it essential to foster the growth of industry, and to protect it against factors which might inhibit its growth. At that time, goods were not mass produced, but mainly were individually created by artisans. Most commonly, goods were sold locally, by the maker directly to the consumer, with no wholesalers, distributors or retailers, and no mass advertising. Another prevalent method of selling goods was through traveling markets, where tradesmen would travel from town to town selling their wares. Liability insurance was not prevalent nor widely available. The law thus protected manufacturers and sellers. Legal canons such as "let the buyer beware" were the norm, and a manufacturer or seller could not be liable unless (1) one was at fault in creating a defective product, and (2) even then, only to someone with whom the seller was in privity of contract. So, for example, if you purchased a carriage at a local retailer, you couldn't sue the manufacturer of the carriage for damages caused by a defective axle, and the passenger or bystander injured in the accident could not even sue the retailer.

Gradually, over time, changes in society's views produced changes in the law of product liability. When goods became mass produced, when manufacturers relied on national advertising to create a demand, when their ads and catalogues offered at least implied assurances about the quality of the merchandise, and when insurance companies offered relatively cheap insurance as a device for spreading the risk as a cost of doing business to all consumers and thus to society as a whole, the common law reacted by first carving away at the privity requirement with exceptions, later abolishing it, and then going even further by making the manufacturer or seller strictly liable without fault for harm caused by defects in their products. Thus, today, in most jurisdictions, the manufacturer and sellers are responsible for any injury caused to any foreseeable victim (not just the buyer) by a manufacturing flaw, a design defect, or a defective warning or instruction rendering a product unreasonably dangerous, even if the defect was not the result of careless or other wrongful conduct.

Most recently, the pendulum has started back, as manufacturers and sellers cried out that the liberalization in liability rules has produced negative impacts on the growth of industry. Insurance rates have climbed, and some valuable products have been taken off the market. The legislatures and courts have reacted by making some restrictions or providing some limits on product liability.

So another reason why THE LAW is not clear and definitive is because it is ever-changing.

(4) Finally, and somewhat surprisingly to beginning law students, in many areas there is as yet no law. The legislatures have not enacted statutes to deal with an issue, and the courts have not been presented with disputes raising the issue. Thus, the issue is said to be a matter of first impression. Twenty five years ago, when Karen Quinlan's parents sought a court order allowing them to withdraw artificial life support for their comatose daughter, there was no settled law to guide the New Jersey court in reaching its decision on whether to grant the order. When heart transplants first were attempted, the courts had to develop a new definition of death, since the donor had to be legally dead to extract his/her heart, but, inconsistently, the heart still had to be beating to be usable for a transplant. Recently, legal issues relating to the validity of surrogate motherhood agreements caused national debate, as did the decisions on what exactly are frozen embryos and to whom do they belong? Who is the legal mother of a child born with an egg furnished, intentionally or accidentally, by another woman? Is it homicide to furnish information or the means for one to commit suicide?

Thus, you can see the law is not as simple as the phrase THE LAW might seem to connote. It is complex and ever-changing.

The law school's purpose, therefore, cannot be simply to teach you a bunch of rules you can memorize and spew back on an examination or ultimately on a bar exam. The major purpose is to train you to improve the skills and abilities you will need to be a highly competent attorney -- the abilities to analyze, to reason, to advocate, to self-educate.

The school will seek to sharpen your analytical abilities, so that you can analyze a set of facts and determine what narrow legal pigeon hole the case fits within, what the precise issue is -- is it a torts issue, a matter of criminal law, or of the law of contracts? and within those fields, what is the more narrow issue raised? ... is it properly a battery or a negligence action? and more narrowly yet, did the defendant commit a battery against the plaintiff when he struck the horse upon which the plaintiff was sitting? and more narrowly yet, was the horse an extension of the plaintiff's persona, so that by striking the horse, the defendant was invading the personal dignity of the plaintiff?

Analytical skills also will be developed so that you may read previous cases and statutes and determine their possible applicability to the case at issue. Reasoning skills are honed by repeatedly making you logically apply the principles decided in previous cases to new fact situations, and then asking you to support your conclusions by sound deductive reasoning. Our goal will be to have you be able to analyze issues by yourself, research and reason from the precedent cases and statutes, and predict or advocate the results in the case posed. And finally, the school will seek to help you develop an understanding of the underlying factors influencing the growth of the law .. the important historical, economic, sociological, philosophical and public policy considerations which influence the shaping of the law.


In the early days of American history, a person became an attorney by serving an apprenticeship in the offices of a practicing attorney. This on-the-job training was supplemented by the candidate reading the classic treatises on the law -- mostly the older English treatises -- Coke, Littleton, Blackstone. – and those of the American treatise writers, including Chancellor James Kent, after whom one of our predecessor law schools was named.

In 1779, George Wythe was appointed professor of law at William and Mary, and many similar professorships were created at other universities thereafter. Law at that time was an undergraduate department or discipline. In 1784, the first independent law school, Litchfield, in Massachusetts, was established, and its success led to the creation of many other private law schools. Graduation from law school became an additional way of becoming a member of the bar.

The method used in the law schools and law departments was purely lecture. Professors and practitioners lectured, and students were urged to write everything down so that they would have a complete set of materials on each subject when they began practicing. Again, supplementation was through readings in the text books... the classic Blackstone’s Commentaries, Coke, Kent, etc..

In 1870, Professor Christopher Columbus Langdell of Harvard popularized a new method of teaching law -- called the Case Method. His premise was the law was a science and could be taught as a science. Chemistry teachers were not taught simply by lectures but conducted experiments to determine for themselves the general theorems of chemistry. Law students should likewise be able to examine the original sources of the law -- the cases and statutes -- and synthesize from them the general principles of law.

Today, the Case Method is the predominant method of teaching of most courses at nearly all law schools. As the first step, the student reads and analyzes the original sources of the law -- selected cases, statutes, constitutional provisions, and administrative regulations. From that reading, the student is to derive an understanding of the main classifications of the law -- Contracts, Criminal Law, etc. and within each, the general doctrines and their applications to various fact situations, with an examination of the reasoning used to reach the results.

The reading of cases is augmented with the class discussion -- the so-called Socratic Dialogue. A student is asked to orally summarize a case. The professor may then ask probing questions about the case, designed to test the student's understanding of its key facts, holding and reasoning. The professor will then ask the student to apply the legal principles of the case and its reasoning to a new set of facts -- a hypothetical -- and to predict the result or argue for a result, using sound legal reasoning. Often, the professor's questions will lead to the exploration of matter not stated in the case, but which may have played a large role in the outcome -- such as historical data, additional facts not listed, economic concerns, and matters of broad social policy.

The final ingredient of the Case Method is the problem type examination. Instead of merely asking the student for a general exposition or summary of the principles studied, the test calls for students to analyze new facts, determine the legal issues raised, synthesize the relevant legal principles studied, and apply them to the set of facts to predict the results or argue one side's cause. The test is not usually designed to determine a "correct" answer; it tests the student's abilities to analyze, reason and advocate.

In addition to satisfying Langdell's belief that the law is a science and can be taught as a science, the Case Method serves to satisfy the main purpose of the school -- to train students to use the skills and abilities necessary to becoming an outstanding attorney. Furthermore, the method rests on a sound pedagogical premise -- students learn better when they take part in the learning process rather than being passive recipients of another's knowledge. Thus, undergraduate students have been shown to learn better and retain longer material they have researched and presented in term papers than material learned for an examination.


Preparing For Class

The first thing the student must do is read the cases and other materials assigned. But this is not an easy task. The law is a technical subject. It has a language all its own. It uses Latin phrases and Norman French phrases, and English in ways quite different than usual. You need a good legal dictionary with you.

Especially in the first year, cases must be read very slowly. Judges don't write for humble law students. Sometimes legal opinions are not well written and are obtuse. One must read closely to try to understand the meaning. Every word is important. One cannot read judicial opinions like one reads People Magazine. It takes about one hour for every 12 pages -- more like Shakespeare, (or Hustler or Playgirl. :) )

The cases should be read with some questions in mind. One of the most important often is "Who were these guys?" That is, what were the parties' roles -- not just plaintiff and defendant, but buyer and seller, owner and trespasser, landlord and tenant. Quite often these labels will prove to be an important factor in the ultimate determination of the dispute.

And exactly what was in dispute? The cases in the book almost always are appellate decisions, and one party is claiming that the lower court committed some error -- in directing or not directing a verdict, in instructing the jury, in allowing certain evidence in, and, less often, in weighing the evidence. Exactly what was the claimed error committed by the lower court. Don't ignore the procedure. The place where the arguments of the parties cross is usually the question presented for the court to resolve, and the answer given is the holding of the case.

You should be critical in your reading. Don't accept everything just because it's in an opinion in the book. Was the judge's analysis sound? What ramifications can be envisioned from the decision for others in similar situations, or for society as a whole? What will be the impact upon industry? Does the case give sufficient weight to human rights and values? Will it serve as an effective deterrent? If there is a dissent, or concurring opinion, do you think it is better reasoned? What would you have argued if you had been counsel in the case?

The cases in each section of the casebook are usually related to one another in some fashion. The author may be trying to show an historical development of a doctrine .....e.g. privity as a requirement, to the courts’ carving away at the requirement with exceptions, to the doctrine’s complete abolition, to going all the way in the other direction and imposing strict liability, and then to the current restrictions. Or, the author may be breaking some larger doctrine down into component parts, with each case illustrating one of the components .... for example, in Torts, the battery cases, where each case or note illustrates one element of the prima facie case. Or the author may put cases together to enable the reader to get an exactness of the rule ... starting with a case that adopts a proposition of law, and later cases narrowing, or enlarging the principle, or extending it to new facts. {JUMP LINK TO illustrate with the Pierson v. Post series of cases, where in case one, the hunter shot the fox, but before he could pick up the dead animal another hunter took it, to the later case with similar facts, but where the plaintiff owned the property on which the hunter was trespassing, to the oil well drilling case where the adjoining owner trespassed to drain the oil well under the soil, etc.]

Students will normally want to Brief the cases read and analyzed. A brief is a summary of the case, in student's own words.

It first should be made clear that law students are not required to brief cases. No one will ask you to turn in a set of briefs for grading or review. They are solely for the student's benefit.

There are several important reasons why you should do it:

(1) Preparing a brief, in your own words, makes you read and understand the case better. If you have to communicate to yourself what a case is about, and what the court held and why ... and you have to do it in your own words and not just by copying from the case .... that means you really have to understand it. There is a tendency for beginning students to just copy from the book; I always suggest that after you read the case, you explain it to yourself, orally, and then write it out, like you were explaining it to your mother..

(2) The mechanical act of writing out the brief helps some people remember it better and longer – “through the pen into the brain.” Of course, you will probably be using a computer instead of a pen, but the same phenomenon is true; one usually will remember better what one has to physically write out, as opposed to just reading it, or just copying it with a scanner.

(3) Student may have three or four classes in the same day. It is pretty hard to remember all of the cases you have read for that day. Having an accurate and complete brief helps one refresh recollection of each case in class, when you or someone else is reciting on the case. Should you be called on to “recite” about a case, while you will not be able to simply read your brief, you can look at it to refresh your recollection and then orally explain it.

(4) An accurate and complete brief is an extremely valuable aid and time-saver, when you are reviewing. It is unlikely that you will be able to remember all the cases you’ve read, especially weeks or months later. If you have prepared a complete and accurate summary of each case, or if you have corrected any errors or omissions in your initial draft, you will not have to reread the cases later, when you are reviewing. The brief of the case should be sufficient to remind you of the important facts, the issues before the court, the court’s holding, and its reasoning, plus any additional information elicited from the case or its discussion.

Suggestions For Preparing Briefs:

1. Read all the cases assigned for that class first, before going back to brief the first case. The later cases often will make clearer the true significance and holding of the first case. This is because the author has put them in a certain order for a reason. As explained before, it may be to help you understand the historical development of a rule, it may be to help you understand the various elements of a doctrine, it may be to show a different rule and the reasons given by those courts which disagree, it may be to show a refinement of a rule or its application to various facts.

2. State the holding and reasoning in YOUR OWN WORDS.. Don't just copy from the book. Even try closing the book, so as not to be tempted to merely copy. You can’t master an idea unless you can explain it to someone else, and you can’t do that unless you translate it into language that you are more familiar or comfortable with. Courts tend to write their opinions in complex jargon or legalese. It is important that you translate the complex language into words that you are more familiar or comfortable with, so long as you make sure that you are not altering the legal meaning of the words by so doing. Sometimes, you must try to adjust to legalistic terms which are “words of art.”

3. Avoid using “canned briefs.” These are commercially sold briefs of the cases in your casebook. Students think that using these will save them time in briefing the cases themselves. But the only benefit from briefing cases comes from doing it yourself, for yourself. People think differently. Some may find one format useful, while others find that same format useless. Some people must write very detailed summaries of a case in order to master it; some only require a single sentence to enable them to recall all of the essential aspects of the case and its holding. Experiment as to what format is best for you.
But the “canned briefs” are someone else’s format, someone else’s words, and you would have to adjust to this someone else’s methods rather than your own.

4. Some of your profs or others will suggest possible forms, but remember, there is no one magical method. You want to create a format that works for you. At the beginning of the semester, you probably want to make the briefs a bit longer, so as to enable you to remember the name of the case, its jurisdiction and date, the page where it is found in the book, the important facts, the issue or issues, the holding and the reasoning, plus any questions you have about the cases, or concerns about the outcome. You will be able to revise your format later as you discover how much or how little you need to accomplish the goals of reinforcing and learning, remembering, and reviewing.

What To Do In Class

As indicated before, in most of your classes, some form of the Socratic Dialogue will be used. One student will be asked to summarize a case, state the issue presented by it, the court’s holding, and important reasoning. The professor may ask some questions designed to bring out some facts or factors the student has missed, or to test why certain facts were or were not important to the outcome. Typically, the professor will then pose one or more hypotheticals, slightly or greatly changing the facts from those in the case just summarized and ask the student to apply the reasoning and rules of the case to the new situation, to see whether the result would be the same or different -- to see whether the case would be bound by the former case or be distinguishable.

If you are not fortunate enough to be called on to discuss the case, what should you be doing? (besides heaving a sigh of relief?) Clearly, you should be listening, not only to the teacher’s comments or questions, but to your classmate’s answers. Compare what he/she is saying to your own possible answer. Is the student missing something? Or has the other student seen something you did not? Quite often, the teacher will not say whether the student is correct or not. It is the discussion, the argument, the reasoning, that is important, and not necessarily the “correct” outcome. So, much of the teaching going on will actually be done by your classmates. It is important to listen to them.

How would you answer the hypothetical? Ordinarily, the teacher will want to continue questioning one student for a while, but eventually may ask the entire class to participate. Wait for professor to indicate that she/he is seeking further opinions. Then, and only then, raise your hand. Don't interfere before. Surely do not shout out answers, but wait to be recognized by the teacher before speaking. Volunteer a lot. It is good to get the experience of articulating your views, even if they are then shot down by the teacher or another student. On the other hand, don’t monopolize the discussion; let others have their chances too.

There may be times you will say something really stupid, and people will laugh. But don't be upset or embarrassed. You can be sure that probably others in the class had the same or similar idea. And sometimes, it will turn out that the question is not really stupid, even if it so appears at first blush. The professor may see that you had the germ of a very good idea, but just didn’t articulate it well enough, or didn’t know some information that would have made it sound lots more reasonable..

Take notes. But be judicious. Do not try to copy down everything the professor is saying, or your classmates’ responses. The discussion is more important, and taking part in it, either actually or mentally, by listening and thinking, will serve you better than trying to write everything down. Law school classes are not usually like undergraduate courses. There won’t necessarily be a “right” answer. The questions being asked may be important enough to write down. The hypotheticals, too. But it is better to be participating than obsessed with trying to take things down. Copying everything prevents the thinking you should be doing, which is much more important. Some students try to take down everything being said, but nothing passes through into their brains. (This is great training if you want to be a Court Reporter, but not very good for being an A student). Try writing key words rather than detailed sentences. You can fill in the gaps after class, and it will be more meaningful and serve as a quick review.

Reviewing After Class

SAME DAY OR EVENING: Now is the time to fill in your class notes, while the class discussion is still fresh in your mind. Now is the time to correct case briefs. If you don’t, when you come back weeks later to review the material, you will not remember that you got the wrong holding, or missed some significant facts, or overlooked some crucial reasoning. Now, while it is so fresh, is the time to actually master the material covered. Think about what was covered. Explain it to yourself. Actually, the best thing you can do is to call your mother and tell her what you learned in class. Or talk into a tape recorder and do the same. The idea is that if you can explain it to someone, even yourself via tape recording, you have mastered it. The knowledge one has in her/his head is of no use unless you can communicate it to someone. If you can communicate it now, it will be easier to recapture later when reviewing. And ultimately, you will have to communicate it to someone, on an exam, or on the bar exam.

PERIODICALLY. Every few weeks, you should go back and review chunks of the course. For example, when you finish a discrete unit, such as the Intentional Torts, go back and review all of the material covered during those few weeks. Write an outline of the material now. Excuse the cliches, but you need to realize that there is a forest, not just a bunch of trees. And one more, you need to see the big picture. For one thing, the authors and your professor usually have chosen to break larger concepts into smaller parts for teaching purposes, covering one chunk at a time. But they all add up to some larger concept, and it is necessary to put the parts together to see the whole. Also, some things covered later will relate to things already covered, and you need to go back to the earlier parts to modify or clarify what you then learned, to put it all together.

Most students find preparing an OUTLINE the best way to review. But again, everyone learns differently. Learning is highly individualized. Some people are visual learners; some aural; some have to write everything out. Some are very formal thinkers, some free flowing. Some learn best from flow charts. You need to experiment to see what method is best for you .... what’s most suitable to your method of thinking ... to your method of organizing. The goal is to gain a complete understanding of the various views of the rules of law, their underlying rationales, and the ability to logically apply these rules to new fact situations.

Obviously, there are commercial outlines available. Some of these are written by law professors, and are quite good. But it is very important that you only use them to help you prepare a set of materials that will help you master the subject matter, and not as substitute for your own attempts. If you try to use a commercial outline as your exclusive method of studying, you once again will be forced to adapt yourself to some other person’s organization, and words. You will spend your time trying to understand their methods and explanations. You will be much better served by trying to master the material yourself. To practice law, you will need to be able to competently analyze facts and determine what legal issues they raise, research the law that will be applicable, read statutes and cases and determine their applicability or inapplicability, synthesize the cases and statutes, and reason from them to predicting the results in your case or as a basis for arguing the merits of your case. You can’t do these things if you don’t learn how to do them in law school. You won’t learn them as well or as quickly if you attempt to short-cut by trying to use other people’s analyses, reasoning, synthesis of materials.

Other Study Aids:

Many law professors, attorneys or judges have written text books on the subjects you will be studying. Some of these are specifically geared to law students, and these are commonly called Hornbooks. The authors of your casebooks generally will cite to some of these books in the notes after cases; your professor may recommend favorites for her/his course. These are much more detailed analyses of the law than the commercial outlines. They are quite useful when doing legal research (for the course in Legal Writing, for example), for they provide citations to cases, statutes, law review articles and other legal sources. They are much more rich discussions of the law than the commercial outlines, which tend to be more like flash cards. Hornbooks can be very helpful when you have finished a chapter or section and have attempted to synthesize the material yourself. They can help you flesh out some of the concepts, give an explanation of a concept in different words, give further examples. Once again, you shouldn’t use these to substitute for outlining the material yourself, but as a supplement to your review process.

In addition to textbooks, the authors and/or your professors may refer you to various sections of the Restatement in the course in question. These are the products of the American Law Institute, an association of law professors, judges, lawyers, other scholars, who meet periodically to review an area of law and debate what the law is and what it should be. They publish bound volumes attempting to restate the law in black letter terms, with explanations and examples. The ALI Restatements have no force of law themselves, but are only the views of the membership; however, the prestige of the group has caused the Restatements in various areas to have a great impact on the growth of the law; many courts have adopted sections of the Restatements verbatim as the law of their jurisdictions. The Restatements are on reserve in the library, and are a good way to review a subject, since they offer lots of concrete examples of a rule being applied to a fact situation, with explanations of why the rule applies or does not apply. They can be a valuable study aide.

Virtually every law school in the country publishes one or more law reviews. They contain lead articles written by judges, lawyers, law professors, or other legal scholars, and most have additional articles written by law students. Many of the better articles are cited in the notes in your casebooks. These too are great sources for legal research. But they also are valuable when reviewing an area of law that you are having trouble mastering. They are much more complete and analytical than any commercial outline can be, and are filled with citations to and analyses of cases on the subject of the article.
A student who is having trouble understanding some aspect or portion of a course may find a clear law review article explaining and illustrating the concepts involved, and clarify the subject.

Often, law students form study groups, which meet periodically to review one or more courses. These can be a very beneficial method of reviewing. However, they are best for the students who are active teachers and not passive recipients of others’ knowledge. Once again, if you can competently explain concepts to others you have mastered the material, and can communicate it to your professor on a final exam. If, however, you are merely listening, you have to try to adapt to another lecture by another “teacher.” And by all means, if the Study Group chooses to do joint outlines, do not depend on the Group’s outline to replace your own– once again, people learn differently. If the one who prepares the Group’s outline uses a very formal method and you think in a less formal method, you may be lost in trying to use the Group outline. You need to do it yourself!!!

Chicago-Kent also makes available outstanding teaching assistants for your first-year courses. They will hold periodic sessions to discuss study methods, and even hold some substantive review sessions. Many will give practice exams during the semester. Finally, they are all available for personal consultation during assigned hours. Take advantage of this wonderful program.