A Good Omen (Herein of Torts)

I got an unusual email today, and it prompts a small disclosure. Here's the key part of the email:

Hi. It's been a number of years since we've spoken, but I figured I would take a shot at inviting you to lunch when I am on campus September 10th … if you are free that day, I'd be happy to treat my favorite 1st year professor to a sandwich or something.

I choose to treat this as a good omen, and an occasion to reveal that my teaching plans for the Fall semester have undergone a radical change. As you may recall, UM over-admitted its entering class — by a lot — so much that we offered them a bribe to wait a year. But even despite that we've got a lot of incoming 1Ls.

One consequence of this, um, bounty is that we're putting on a whole extra section of first-year classes. And I've been tapped to teach Torts. So for the first time in 15 years I won't be teaching Administrative Law — we've found a fine substitute1 — and I will be teaching my first common law course ever. It's also a return to a first-semester first year course after a layoff of more than a decade; back in the Dark Ages I used to teach Civ Pro I (first semester) and more recently, but still a long time ago, Constitutional Law I (second semester).

Torts is a partial departure for me. Most of my work and all of my teaching has been national or international, procedural, or frankly theoretical (Jurisprudence). But as I think more about privacy issues, torts and tort-like thinking looms larger, and of course common-law reasoning is at the root of so much of what we do, even if it is not a common law subject. Plus, of the common law subjects, tort remains the purest, the least overrun by statutes and codes.

I am looking forward to the class, although not to its size, which could hit 130 students(!). First year students are different: they are very highly motivated, they think entirely like civilians rather than at least partly like lawyers, and there is an unreasonably high fear factor. It's this last aspect that used to put me off what is otherwise a fun and exciting teaching experience: I don't like or want my students to be afraid. By the second year students mostly see through us, so it's no big deal. But first years come in with visions of “Paper Chase” dancing in their heads, and my teaching style, which tends to the dialectic more than to lecture, does not seem to blunt that enough. Or at all.


1 Why, you might ask, move me to Torts and move someone else to Administrative Law? There are a lot of reasons (including that a few years ago I asked to teach Torts), but one of them is that the new Adlaw teacher will be a part-time member of the faculty and there's a policy of staffing first-year courses with full-time (or full-time visiting) faculty whenever possible.

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21 Responses to A Good Omen (Herein of Torts)

  1. 3l says:

    “first year … students think entirely like civilians” is great. i’m sure they will be terrified.

  2. Andrew DeWeese says:

    Recent post about buying a new laptop, and now a post about teaching a first-year class – have you thought about a laptop policy for your first-year class? It seems like having a class with 130 students would be really conducive to surfing the internet, easier for kids to fall through the cracks, etc.

    I can’t believe the new class size – it’s going to be a really interesting few years for you guys.

    I know we’ve already talked about this too much, but I remember that one of the arguments for keeping laptops is that kids are more used to typing than writing their notes. Well – just a personal experience, but this last year as a first-year associate I have taken loads of notes, and never on the computer. Seems like the skill of summarizing really fast while concentrating on what the person is saying comes in really handy… and how could you take a deposition if you were typing the notes?

    Just sayin’. Although, the kids who spend Torts looking at ESPN and then bomb the final might drop out and you guys could then have a manageable class size. That might be good.

  3. michael says:

    Yes. I plan to have a laptop free zone for those who don’t want to be bugged by clicks and flashes.

    And I’ll walk up and down the aisles sometimes.

  4. Rhodo Zeb says:

    Good Deity, you added a new section AND still have so many students?

    Let me go back to the earlier post about UM’s overbooking and change my comments.

    In light of this info it is hard to argue that rather large mistakes were not made. Are other schools not similarly burdened?

    Anyway, lemons, lemonade. More the merrier…

    Uhh, everyone loves first years so its good there will be more of them.

    Safety in numbers.

    That’s all I got. It isn’t the end of the world.

  5. michael says:

    Well, I left out some details. One of them is that the extra section is being run as an “experimental” section, with some changes from our normal curriculum, especially as regards Elements. Students are normally assigned randomly to sections, but we gave students a choice as to whether they wanted in on this experiment or not; about 130 chose “in,” and rather than invidiously have a small percentage not get their wishes in order to make all the sections the same size, the Deans in their infinite wisdom decided I’d just get to enjoy an extra-large group so that all 1Ls could have their first choice.

  6. Rhodo Zeb says:

    Ahh, that is interesting. So the school took advantage of the situation well, and it seems the student body has considerable confidence in the plan. That does sound a but like lemons and lemonade.

    When you signed up for it you didn’t know how many students you would get, did you?

    Ha ha sometimes things don’t quite work out as planned. Anyway, will be a more interesting year than usual, I would bet.

  7. michael says:

    When you signed up for it you didn’t know how many students you would get, did you?

    Being a pessimistic sort, I had my suspicions, if only because the room they said I’d get to use holds larger numbers than any other classroom available….

  8. 3l says:

    are you saying that the students in the experimental section will not take elements?

    that’s an “experiment” thats only a few decades late…

  9. michael says:

    No, please don’t start rumors!

    There will be an elements class, but it will be structured in a new way.

  10. 3l says:

    in what new way will it be structured?

    can’t it just be eliminated? must we really read gorgias?

  11. michael says:

    Dean White will be teaching it, based on a course she has done before in which students intensively study the entire course of a litigation, including learning about the histories of the parties and the lawyers. I don’t believe that Gorgias is likely to be in it, but I don’t know the details.

  12. UMLAWGRAD says:

    hopefully they get rid of the Stotz-master….

  13. michael says:

    OK folks. You want to talk substance, the door is open. You want to just attack people, then comments will be closed.

  14. T Bagins says:

    It’s about time they shook up elements. As far as I’m concerned its just like Obama’s Healthcare Plan. It’s supposed to be the glorious answer to everything that helps everyone forever. However, no professor can give any specifics, and I don’t think any student who has taken it for the past 10 years can tell you what it was about. The same professors have taught the same classes for so long that they are the only ones that understand what is going on. Every bright student just gets an outline from a previous year and follows it like a transcript, right down to the same jokes.

    It could be a great class that ties LRW into Civil procedure and legal theory. Which would be great academically since LRW is where a ton of questions arise that should and could be answered in a broader more theoreticall setting like elements, and LRW professors are rarely on campus and hard to speak with.

    Hopefully Dean White teaching Alternate Elements will be the first step in dismantling Stotzky-ments.

    However even though Stozky runs elements and LRW he does not see fit to coordinate them. I’m sure he knows what he is doing though, he is so smart not a single one of his students has understood him in years.

  15. michael says:

    I can’t speak to Elements, but for Obama Health Care there are well over 1000 pages of specifics…

  16. UMLAWGRAD says:

    OK – Not a personal attack: myself and many (MANY) fellow UM LAW ALUMS feel that elements was a worthless experience. I am a recent alum, but the group I speak of goes back to friends of my parents (late 70s/early 80s) grads & people I worked with (70s, 80s, 90s + grads) – who had the same elements prof as me. All of these people (ranging about 30 years of UM 1Ls) all had the same exact worthless futile experience. These people range from judges, big law partners and successful solo practitioners… What does that say? Do I really have to go start a petition? Trust me if I won the lotto tonight I would not give UM a dime until they revoked a certain someone’s tenure and got rid of the “Theory & Craft” (worst $120 I EVER spent) – Michael at least tell the 1Ls to buy the used copy (if there are any… I ended up burning mine) OR not buy the book at all.

    On a happy/nostalgic note, I had prof Massey for 1L civ pro – all these people (myself included) had a very positive exprience.

  17. T Bagins says:

    “I can’t speak to Elements” …. Point proven? Nobody knows what the heck it is about. Even Stotzky and Anderson cannot explain.

    “for Obama Health Care there are well over 1000 pages of specifics…” Then it’s not specific.

    Also, the bill is still in Senate committee is it not? I’m am sure you are aware that there is a heck of a lot of horse trading that will go on from now until the time both houses pass the combined bill. Since nobody is committing to anything, what we will eventually get (if it ever passes) is some pork-laden committee sausage that does nothing except subsidize the connected and raise taxes. The 1000 pages of specifics you refer too can and will be easily dropped by the wayside and replaced with something else in conference committee.

    http://www.healthreform.gov/ is so full of testimonials and short on substance that it could be mistaken for a 2:00am TV infomercial get rich quick scheme .

  18. michael says:

    About ten years ago I proposed we abandon elements; the faculty didn’t buy it.

    Since then, however, the range of people who teach it and what they do with it has greatly altered (and indeed, even some of the traditional teachers, notably the late John Gautatz also changed their syllabus considerably). From what I know of the more modern versions, I think they provide courses that are of value to first year students; whether this is the optimal use of the slot in the first year, and whether the wide degree of variation we now enjoy is the best strategy are things on which reasonable people seem to differ, but the case isn’t quite as clear-cut as it used to be.

  19. 3l says:

    or maybe you were right on then and you still would be, but that position has weakened due to futility over the last decade. i would like to see that idea gain momentum again.

    i think its enough that we are all already slaves to our registration times and can’t take what we want, let alone being forced to take a class that could be shortened or eliminated.

  20. umgrad says:

    I had Professor Anderson for Elements and, for the following reasons, think it was one of the better classes that I had:

    First, the materials were good. The casebook, to be sure, has a few classic opinions: Hadley v. Baxendale and In re Polemis come to mind. There are others. Levi’s Introduction to Legal Reasoning is a book that I still read to this day. And, therein, are multiple references to equally good materials on the basics of legal reasoning. I’m not sure what to think of The Bramble Bush. It has its good parts; Llewellyn’s four cannons of a case (or whatever they’re called) and the summary on Hohfeld’s right-duty-privilege-power theories were interesting. Some parts were overly nostalgic and outdated, and perhaps should be retired. E.g., “Law Review Men.” The other good aspect of the casebook leads me to my second point.

    Reading cases in chains to see their progressions and inconsistencies, to induce legal rules and then to apply them in future cases, to see how dominant judges affect a court, is perhaps the course’s best feature. And the casebook facilitates that with the warranty line of cases and the contract line of cases. In the contract line you had Cardozo shake up the New York Court of Appeals. Anderson made up his own line of cases about housing rights in Washington DC, when Judge Skelly Wright was appointed to the U.S. Court of Appeals for the D.C. Circuit.

    Perhaps only in Constitutional Law, when you read Commerce Clause case after Commerce Clause case, or Equal Protection Law case after Equal Protection Law case, do you get the same sense of how this process works. Elements makes students go through this process early on. It is, in my opinion, valuable training for a lawyer.

    Third, briefing may get tiresome, but it never gets old. The ability to read and understand a case well is reinforced by the constant requirement of briefing them.

    Last, I think it’s kind of cool that students and alumni can talk about the same cases, the same casebook, etc. It’s a common experience all Miami students share. For that reason, too, I’d be sad to see it eliminated or changed to the point that no one knows of the case Butler v. Wolf Sussman.

  21. UMLAWGRAD says:

    Gnrl cnsnss – Sttzky s th prblm… h s t ld t ths pnt t mrry yt nthr stdnt s h shld jst gv t p lrdy.

    (Yes I know that’s just wrong for me to say and probably somewhat UNpc – so Michael if you must – censor this post – I won’t be offended)

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