Torts Teaching: from Basic Training to Legal-process Theory: Dominick Vetri, Tort Law and Practice

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

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1SUMMER 2001

Torts Teaching: From Basic Training to Legal-Process Theory: Dominick Vetri, Tort Law and Practice

Joseph A. Page(fn*)

I. Introduction

When I was preparing to launch my career as a torts professor at the University of Denver College of Law in the fall of 1964, I found a rather thin menu of casebooks from which to choose. However, the editors of these tomes were towering figures in the field, a fact that more than made up for (and perhaps explained) the paucity of available teaching materials. The list included Prosser and Smith,(fn1) perfectly straight-forward in its approach and burnished by the recognition that its lead editor was the most influential torts scholar of the day;(fn2) Seavey, Keeton, and Keeton,(fn3) leavening a stolid devotion to the case method with an occasional and, for its day, innovative use of cartoons;(fn4) Green et al.,(fn5) with opinions and text uniquely paraded in factual categories such as public-service companies(fn6) and horse-and-buggy traffic;(fn7) Shulman and James,(fn8) notable for employing a workers' compensation opinion as its engine(fn9) and consigning intentional torts to the caboose;(fn10) and the "new kid on the block," Gregory and Kalven.(fn11)

Prosser and Smith would have been the safest selection, its heavily-edited cases faithfully tracking the leading treatise in the field,(fn12) and its avowed aim to "be all things to all men,"(fn13) underscoring, perhaps unconsciously, that torts teaching was still pretty much a fraternity, and at the same time reflecting a marketing strategy the success of which would be difficult to criticize. Seavey and the brothers Keeton offered raw material for a "hide-the-ball" Socratic approach to the subject, as well as the only available teacher's manual.(fn14) Green featured what in my judgment was the most interesting selection of cases, both on their facts and in the variety of issues they raised, but making sense of the arrangement of the opinions seemed beyond the reach of one not schooled in the fundamentals of legal realism.(fn15) Shul-man and James provided a unique focus on tort law as a mechanism for distributing losses,(fn16) but by the mid-1960's, the materials had become woefully out of date. Gregory and Kalven, a soi-disant "casebook with a view,"(fn17) had the most contemporary feel to it, as well as rich chapters on personal-injury damages(fn18) and defamation.(fn19) As happens, I suspect, with most novices, I chose to go with the casebook that first exposed me to torts, Seavey, Keeton, and Keeton (although I eventually used the crucible of the classroom to test all but one of the original "fab five").

The panorama began to change in 1971 with the appearance of the Franklin and Rabin book,(fn20) which rotated the torts world on a California/New York axis, and over the next three decades a new generation of torts teachers brought forth new materials offering a panoply of fresh approaches and divergent viewpoints. It was as though legal publishers had resolved to heed Chairman Mao's deathless dictum about "[l]etting a hundred flowers blossom."(fn21) Today, the newcomer to torts confronts a cornucopia of casebooks,(fn22) and adventurous souls have the opportunity not only to use modern photocopying technology to assemble their own original materials, but also to mix and match opinions and text culled from various existing casebooks.(fn23) Those who feel the need to switch casebooks every few years in an effort to keep their pedagogy fresh (and I include myself in this group) must struggle with the same embarrassment of riches.

It was in the course of my meanderings through the torts-casebook landscape that I came upon Professor Dominick Vetri's entry in the field.(fn24) The quality that first attracted me was the way it fashioned a user-friendly introduction to the study of law, to the uniqueness of the common law, and to the centrality of process. The book demonstrated an unusual sensitivity to the bewilderment of beginners and made a special effort to anticipate their needs and concerns. Yet what made Vetri's approach particularly intriguing was that it managed to play not only to nervous neophytes, but also to students in need of intellectual challenge. It did so by raising issues that stretched their minds by making them contemplate a larger canvas and think even more analytically than they would in striving to master basic tort doctrine and theory. The book's duality gives it a unique stamp and will provide the focus of this review.

II. Torts for Tots

Tort law has traditionally served as a teething ring for first-semester, first-year students, who must, in the first weeks of the course, learn how to appreciate the importance of procedure, hone in on the operative facts of a case, frame issues with precision, distinguish holding from dictum, and analyze the reasons underpinning a judicial decision. Normally, the torts course pursues these goals in the context of opinions dealing with intentional torts(fn25) because of their relative simplicity. Vetri's resort to negligence cases as an introductory vehicle(fn26) gave me momentary pause, but the clarity with which he presented the materials convinced me that at the outset of their exposure to the subject, students could grab hold of the concept of negligence and even begin to run with it.

Opening the course in this way acts as a partial antidote to the current tendency at many institutions, including my own, to reduce the number of hours devoted to the first-year torts course. Where time is at a premium, it seems to me to make scant sense to spend several weeks on the minutiae of battery, assault, false imprisonment, trespass, and related privileges and then have to race through, or omit altogether, some of the more significant aspects of negligence and strict liability.

Indeed, Vetri's inclusion of boxed summaries and flow charts at strategic points in the text,(fn27) "putting-it-all-together" and accomplishment notes at the end of every chapter,(fn28) and an ample supply of practice problems(fn29) does much more than help students through the subtleties of the subject (and thereby reduces the risk that they might fall by the wayside in the early weeks of the course). It also furnishes a welcome counterweight to the pressures that seek to push students into the panic-purchasing of commercial study aids.

Commercial study aids sit like uninvited guests at the banquet table, and legal academics tend to ignore them, perhaps in the hope that they will go quietly away. Yet study aids remain a fact of law school life, so much so that each year they seem to multiply like weeds after a summer rain. Moreover, study aids assume a variety of communicative forms-such as flashcards, charts, audio cassettes and interactive software-that go far beyond the paperback book or booklet and feature not only course outlines, but also case briefs, sample questions and answers, and assorted memory aids.(fn30)

In a 1989 Washington Monthly article criticizing the shallowness and misguidedness of study aids, Daniel Pink noted, "After spending upwards of $20,000 a year to learn to think like lawyers, students could be plunking down an extra 12 bucks to defeat the entire purpose."(fn31) Although his numbers need updating, the basic point remains valid. Experience suggests, however, that nervous lLs will remain vulnerable to the...