A Review of Torts and Compensation: Personal Accountability and Social Responsibility for Injury

• Publication year: 2001
• Citation: Vol. 25 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1SUMMER 2001

A Review of Torts and Compensation: Personal Accountability and Social Responsibility for Injury

Susan M. Gilles(fn*)

One of the most bewildering tasks facing a new professor is selecting a casebook. I would suggest one cardinal rule to follow: know thy book, know thy students, and know thyself. With this principle in mind, I will review my selection of Dobbs and Hayden's Torts And Compensation, Personal Accountability And Social Responsibility For Injury (hereinafter "the Dobbs casebook") for use in my year-long first-year torts class. My review will focus on the third edition and will note changes made in the fourth edition, which came out recently.(fn1) My hope is to tell you a little about the Dobbs casebook and a little about why I thought it would suit my incoming first-year students and my style of teaching.

When selecting a casebook I have four main concerns:* What is the coverage?* Does the casebook employ the traditional case method, a problem approach, or some combination? * What is the balance struck by the authors between exploring policy and explaining black letter law?* Is the casebook student-friendly? Is it faculty-friendly?

The short answers to these questions are that the Dobbs casebook's coverage focuses on personal injury, it uses predominately the traditional case method, it stresses black letter law over policy, and it is extremely student- and faculty-friendly.

I. Coverage

As the Preface (fn2) to the third edition of the Dobbs casebook notes, the two most notable features of its coverage are that the casebook focuses on personal injury (not on economic or dignitary torts) and that it keeps up with changes in tort law.(fn3)

The casebook is heavily focused on personal injury.(fn4) Economic loss and dignitary torts are banished to the later chapters and receive brief treatment.(fn5) If these are topics that you love to teach in depth, then either this is not the book for you or you should be prepared to supplement heavily. Personally, as an addict of defamation law, I always end up supplementing the casebook's defamation materials. On the upside, the focus on personal injury allows for in-depth coverage(fn6) and gives the casebook a strong, consistent flow.

Second, the Dobbs casebook does indeed keep up with changes in tort law. There are frequent new editions and when combined with the yearly, extensive update letter, it is the rare instance when an interesting decision escapes the eyes of the authors.(fn7) Moreover, new issues of tort law are not simply dumped into additional notes, but rather incorporated in a thematic way throughout the casebook. The third edition was sprinkled with cases on AIDS (in particular, the liability of blood banks),(fn8) and the fourth edition has a series of cases, spread throughout the book, on care in nursing homes.(fn9) This use of 20th century fact patterns, in preference to 17th century sword fights, seems to engage and interest students.

One area where coverage seemed weaker in the third edition was products liability; however, this has been partially remedied in the fourth edition. A difficulty with the third edition was the inclusion of a drug case to explain design defects.(fn10) This bred confusion in the students who took the reasoning used in the drug case as typical of all design defect cases.(fn11) The fourth edition drops the problematic drug case.(fn12) It continues to use a pair of Ohio cases to illustrate the shift from consumer expectation to risk/utility;(fn13) has a note on the burden shift of Barker v. Lull Engineering Co.;(fn14) utilizes an airplane case to illustrate the complexities of risk/utility analysis and the need for proof of a reasonable alternative design;(fn15) and concludes with the addition of a new case, the Long Island shooting case, on whether bullets are "defective."(fn16) I think the students will find this structure much easier to follow and will find the addition of the gun case and related notes to be interesting and provocative.

The down side is that drug design cases are now virtually absent from the casebook. With the exception of one extended note summarizing the conflicting positions of Brown v. Superior Court(fn17) (California's adoption of the no design defect action for drugs rule), Cochran v. Brooke(fn18) (taking a risk/utility position), and Allison v. Merck and Company, Inc.(fn19) (a Nevada vaccination case where some of the justices flirted with a consumer expectation approach), the casebook stays away from drug design cases.(fn20) To be fair, there are products liability cases involving drugs elsewhere in the fourth edition,(fn21) but those who want to ask whether and why drugs should be treated differently for design defect purposes may need to add a handout.(fn22) This omission was probably driven by the addition of materials on guns, and, overall, the coverage of product liability is much improved.

II. Case Method or Problem Approach?

The Dobbs casebook overwhelmingly uses cases as its teaching vehicle; however, the casebook does include occasional statutes.(fn23) This inclusion offers the opportunity to make sure that students learn to read statutory language with care. First-year students often suffer from "case myopia" (a condition caught in about the fourth week of class, which causes them to skim any text not in a case). The Dobbs casebook's reproduction of several statutes provides an opportunity to balance the book's case law focus.

Equally, although the casebook does not employ the "problem method" in any comprehensive way, it does offer the occasional problem, usually at the end of a chapter, which can be a useful tool for review.(fn24) I often give students the option of handing in a written answer to one or two of these problems in the course of the term so they can test their understanding and polish their exam writing skills. Still, to reiterate, this is clearly a casebook, not a problem book.

III. What Is The Balance Between Policy and Black Letter Law?

This casebook's primary aim is to make sure students understand black letter law. I do not mean this in a derogatory sense, or to imply that this is a simplistic book. On the contrary, students who use this book are called on to master tort law and its often-conflicting rules. But this is not a policy-focused book. Policy does not drive its layout or its presentation. Nowhere in the third edition's Preface does the word "policy" appear,(fn25) and with the exception of a brief two-page section in the Introduction on the goals of tort law,(fn26) express discussion of tort theory is left to a separate chapter near the end of the book.(fn27)

Here, the fourth edition makes a change, apparently in response to criticism.(fn28) The fourth edition's Preface mentions policy and highlights a new introductory chapter that outlines major policy considerations.(fn29) However, the Dobbs casebook seems, at best, ambivalent about this expanded coverage of policy. It ends this initial discussion of policy with the following comment: "A great deal can be said about approaches to tort law or its goals, but for those without experience in reading actual cases and encountering actual tort problems the goals are so abstract that they almost elude the grasp."(fn30) I agree. I prefer to integrate policy discussion as the term progresses rather than raising the issues, in the abstract, up front. However, if you want to give students a quick textual...