What are we really teaching our students? Those of us who complain that our students are too focused on learning rules and doctrines should read a provocative empirical study recently published on SSRN by my colleague Don Gifford, Villanova sociologist Brian Jones, and two of Don’s former students with expertise in statistical analysis, Joseph Kroart and Cheryl Cortemeglia. Donald G. Gifford, Joseph Kroart, Brian Jones & Cheryl Cortemeglia, What’s on First?: Organizing the Casebook and Molding the Mind, 44 Ariz. St. L.J. ___ (2013) (forthcoming). The article describes an empirical study suggesting that whether the Torts professor begins with intentional, negligent, or strict liability torts affects the students’ understanding of the role of the common-law judge in a statistically significant way. The authors argue that the judge’s role in deciding intentional tort cases is at least to some extent more rule-based than her role in negligence and strict liability cases. Applying the work of sociologist Eving Goffman, they posit that beginning with intentional torts frames the judicial role in this manner. Further, they hypothesize that once frequently anxious first-semester students latch onto one particular conception of the judicial role during the initial weeks of the semester, it becomes anchored and resistant to change even after the students have studied other categories of tort liability.
Gifford et al. surveyed more than 450 first-year law students at eight law schools that vary widely in terms of their
reputational ranking. The students were surveyed at the beginning, middle, and end of the first semester. The survey results supported the authors’ hypothesis that students who begin their study of Torts with strict liability experience a greater shift toward understanding the judge’s role as being influenced by social, economic, and ideological factors and a sense of fairness and less as a process of rule application than do students who begin their study with either intentional torts or negligence. Even when the authors controlled for the ranking of the law school, topic sequence still generated a significant effect on students’ perceptions of the role of the common law judge. Nor did the effect of topic sequence vary by gender. The authors were surprised to find that students who began with intentional torts experience a greater attitudinal shift toward perceiving the judicial role as being policy influenced than do students who began with negligent torts.
Despite their disclaimers, the authors implicitly criticize the overwhelming majority of Torts professors who begin with intentional torts. Most Torts casebooks begin with intentional torts, at least after a brief introductory chapter. Their editors claim that these cases are “accessible,” “memorable,” and provide “a nice warm up” for studying other torts. Some of these same editors admit that intentional torts comprise a “backwater” in modern tort practice. Gifford et al. suggest that the real reason for beginning with intentional torts may be because that is the way it always has been done. They note that the first Torts casebook, edited by James Ames Barr, Dean Langdell’s colleague, began with intentional torts. They provocatively suggest that Ames may have begun with intentional torts in part precisely because these torts were most rule-like in nature and furthered Langdell’s mission to make the law appear “scientific” in order to justify its inclusion within the university curriculum. If this is true, note the authors, then most modern-day Torts professors are “unwitting conscripts” in the Langdellian mission. Read More