TEACHING TORT MYTHS.

• Author: Gerhart, Peter M.
• Position: Tribute to Professor Peter M. Gerhart

CONTENTS INTRODUCTION I. STRICT LIABILITY II. DUTY III. PROXIMATE CAUSE CONCLUSION INTRODUCTION

Undoubtedly, when we teach the torts course we teach the law of torts. We also teach how to think like a lawyer. But these are contested concepts. What, exactly, are we teaching when we teach tort law: the restatement, various doctrinal categories, the law as it is or as it is perceived to be, the law as it ought to be seen and understood, the law as we wish it to be seen and understood? And what, exactly, does "thinking like a lawyer" mean when it comes to torts? Is it reasoning from the restatement, from various categories that judges use to explain their results, from the concept that we think the law stands for, or from an analytical framework that identifies the determinants of law?

I raise these questions because I have grave doubts about whether the doctrine and categories the law uses to organize tort law are accurate reflections of the way tort law really operates. And because of those doubts, I have grave doubts about whether thinking in terms of those categories--and only those categories--really helps our students think like lawyers--or at least like good lawyers. Thinking about the law in terms of categories, concepts, and doctrines that do not seem to reveal the factors that motivate courts to do what they are doing--and concentrating only on those categories--seems to rob students of the opportunity to understand the forces that we can identify as shaping tort law and, therefore, the normative basis of tort law.

Of course, legal categories and definitions are important. Students must learn to work within the established categories of the law, even if they are going to undermine the categories by making persuasive arguments that change the accepted meaning of a traditional category or that result in reform of the categories themselves. As important as doctrinal thinking may be, working within doctrinal categories is different from understanding the dynamics of the case that the judge will find persuasive. Making arguments that depend only on tort categories and definitions may be necessary if a lawyer has no other persuasive reasons for asking the judge to decide the case in her client's favor. But most persuasive arguments, while made within the structure of traditional categories and definitions, are persuasive precisely because they give judges a non-doctrinal basis for deciding a case.

A lawyer's skill set is not confined only to doctrinal arguments or to applying doctrine to facts. They look for, and argue from, the empirical and normative factors that are likely to influence a legal decision maker--the skill of identifying and evaluating the determinants of tort law. If we do not teach our students how to identify and evaluate the non-doctrinal determinants of law, I fear that we do our students a disservice. Skimming the doctrinal surface will not equip our students to dive below the surface and analyze the forces that matter when judges are applying or refining law in the light of new circumstances and arguments. Conversely, if we teach our students to understand how to identify the forces that seem to be at work in shaping doctrine and influencing judges--that is, the determinants of law--we will give our students a methodological skill of great value.

In this essay, I will illustrate these points by examining what we teach our students when we teach tort doctrines that are thought to reflect the law. (1) I hope to show that, in fact, our understanding of tort doctrines, and the way we present it to students, does not reflect what courts are really doing; nor does that understanding reflect the kinds of considerations that courts find to be persuasive. In academic circles, the theories and concepts that animate tort doctrine are hotly contested--consequential and deontic thought vie for supremacy, but understanding these theoretical contests misses the more important task of understanding the kinds of considerations that are, and ought to be, persuasive in settling private disputes between injurer and victim.

In this essay, I distinguish between two kinds of analytical skills. One analytical skill is to use doctrine to argue for the result that one thinks is right or that advances the client's interests. This doctrinal analytical skill uses the words of tort doctrine and cases to try to persuade a judge that a case should come out a particular way. This analytical skill allows students to make the following kind of argument: auto manufacturers are strictly responsible for the harms the defects in their products cause; a person driving while knowing of the risk of epilepsy is a defective driver; therefore, the defective driver should be held strictly liable for the harm he causes. (2) It allows students to write that homeowner liability depends on a three-part test and to make arguments about why the test is, or is not, met. (3)

The other kind of analytical skill is the skill of identifying the factors that courts take into account when determining whether there is a defect in the automobile. This second analytical skill--which we might call the skill of evaluating the determinants of how cases come out--views the idea of a defect in an automobile to be a conclusion that is supported by a framework for thinking about how auto manufacturers ought to make decisions concerning the products they sell, and then evaluating whether auto manufacturers have made their decisions carefully enough. This second mode of analysis understands the concept of defect not as a concept that is self-defining but as a concept whose content must be defined. Analysis seeks to identify the factors that are relevant to that concept and thereby to identify the factors that are likely to be persuasive to judges.

Both analytical skills are ones that lawyers must master, but based on my reading of various casebooks and study guides, I fear that most tort courses emphasize the skill of doctrinal analysis. In this essay, I argue that emphasis of the second kind of analytical skill--a methodology of analyzing the determinants of tort decisions--is just as (or more) valuable.

To be clear, I am not arguing that we should not teach law; I am questioning what mix of doctrine and normative policy is necessary to understand the law. I am not arguing that we should not teach doctrine; I am arguing that doctrine is the vessel by which we make arguments that determine the content of those vessels.

I proceed by discussing three areas of tort law in which the gap between doctrinal analysis and determinate analysis is especially wide--areas where I believe determinate analysis can add a dimension to a student's education that would otherwise be missing. The three areas are strict liability, the concept of duty, and the idea of proximate cause.

1. STRICT LIABILITY

   It is important, of course, that students understand and evaluate the idea of strict liability--the idea that a person may be responsible for harms she has caused, even if her behavior is not faulty. The choice between a negligence regime and a strict-liability regime raises philosophical, moral, and economic questions that underscore and challenge the central characteristics of our tort regime. Strict liability also offers a potent alternative when the legislature wants to abandon the negligence regime and enact a no-fault regime, as has been done in workman's compensation and no-fault...