Reading:
Orin Kerr, How to Read a Legal Opinion: A Guide for New Law Students
Casebook (CB) 1-18
Martha Chamallas , The Architecture of Bias: Deep Structures in Tort Law (This is a long-ish law review article, but it's super important for context. There will be some terms you don't know yet, but that's ok. Look them up! We will return to this article later in the semester, but it's more important that you get the argument and bring that perspective to your reading. Focus on the introduction and skim the rest).
Reading:
Questions while you read:
1. When is someone "at fault" for their actions?
2. Why may we want to hold someone responsible when they do not act?
3. Can you discern any differences between the actions/non-actions in each of the Trolley Problem variations?
4. What happened in Vosburg?
5. Can you rewrite the facts (not the result) of Hammontree, Vosburg, Talmadge, and Wagner in your own words?
6. Can you describe what happened in these cases in 7 words or less? Try it. It's kinda fun.
Reading:
CB 19-23 (including Garratt v. Dailey) (through Note 2)
Picard v. Barry Pontiac-Buick, Wishnatsky v. Huey
Questions while you read:
1. What does it mean to do something "intentionally" in tort law?
2. In Garratt, what did Brian have to do in order to be liable for the intentional act of battery?
3. Define "battery". Can you come up with some examples? Be able to explain why each example is a battery.
4. Is the tort of battery meant to capture lots of conduct? What about ordinary physical contact that takes place on the subway or on playgrounds?
Problems: Intent Problem
Reading:
Lopez v. Winchell's Donut House
CB 57-65 (including GTE Southwest Bruce)
Reading:
CB 472-474 (on qualified immunity)
Nathaniel Sobel, What Is Qualified Immunity, and What Does It Have to Do With Police Reform?.
Joanna Schwartz et al., The Simple Way Congress Can Stop Federal Officials from Abusing Protesters.
Amicus Brief, US Scholars of Law, Allah v. Willing
Questions while you read:
1. Be able to define the tort of false imprisonment and the tort of intentional infliction of emotional distress.
2. What was the result in Winchell's? Do you agree with it? Can you come up with reasons why it should have come out the other way?
3. What happened in Womack? Now, tell me the story from the plaintiff's perspective. Then tell me the story from the defendant's perspective.
4. Should we give damages to someone who experiences only emotional harm without any physical injury? Is that what tort law (or the law, in general) is about? People's feelings?
5. What is Section 1983? What is qualified immunity?
6. Why would the Supreme Court create such a doctrine? And how has it undermined Section 1983?
Problems: Assault and Battery Problem, IIED Problem
Watch this recorded lecture before our next class on Monday, September 21.
Reading:
CB 66-70 (including Courvoisier v. Raymond)
CB 79 (starting with Note 1)-84
CB 84-88 (including Ploof v. Putnam and Vincent v. Lake Erie Transportation Co.)
Reading:
Questions while you read:
1. When do defenses come into play in litigation? Whose responsibility is it to prove a defense is valid?
2. Where was the consent in Geysel?
3. Put yourself in counsels' shoes in Courvoisier? How would you describe the facts from the plaintiff's standpoint? How would you describe them from the defendant's standpoint?
4. Ploof is an old case, so the facts seem a little dated. Can you come up with a modern day equivalent?
5. What are the rules -- in one sentence each, in your own words -- from Ploof andVincent? Do they contradict? How can you fit them together?
6. What are some of the reasons why we would hold people responsible for the torts of others?
7. Try to find a rule for when something is "in the scope of employment" per Christensen. Can you come up with several examples in real life?
Problems:
Reading:
CB 162-167 (including United States v. Carroll Towing)
CB 133-137 (including Vaughan v. Menlove)
Reading:
CB 139-142 (Notes 1-5)
CB 147-152, 154-158
Reading:
CB 169-170
Bethel v. New York City Transit Authority
Reading:
CB 181-185 (including Andrews v. United Airlines)
Gallanter, Why the "Haves" Come Out Ahead
Questions while you read:
1. What are the 4-ish elements of every negligence case?
2. What is the "Hand Formula"? More than just B<PL, what is its purpose? When do we use it? With what part of the negligence formula does it help?
3. What is the question at issue in United States v. Carroll Towing?
4. What is the result, or "holding," in that case?
5. Who is the "reasonable person"? More importantly, why do we use him?
Problems: Assault and Battery (again)
Watch this recorded lecture before our next class on October 13
Reading:
CB 185-192 (through Note 3) (including Baltimore & Ohio Railroad v. Goodman, Pokora v. Wabash Railway)
CB 196-201 (through Note 5) (including The TJ Hooper and Trimarco v. Klein)
Questions while you read:
1. Read Goodman and Pekora a few times. We read them back to back for a reason. What are the differences between them? 2. Start with what happened. Then move on to the result.
3. What is Pokora's relationship to Goodman? Did Pokora overturn Goodman?
4. What are some of the advantages of rules versus standards? What are some of the advantages of standards over rules?
5. What kind of evidence do we introduce to prove custom?
6. What part of the Hand Formula does custom inform?
7. What are the limitations of custom, that is, what does it not prove?
Problems: Duty and Breach Problem
Watch this recorded lecture before our next class on October 19
Reading:
CB 216-221 (including Martin v. Herzog, Telda v. Ellman)
Negri v. Stop & Shop and Gordon v. American Museum of Natural History
CB 235-237 (including Byrne v. Boadle)
CB 240-243 (including Ybarra v. Spangard)
Reading: None
Practice-based activity on tort litigation.
Questions while you read:
1. What is negligence per se? Why "per se"?
2. What is the relationship between a statutory duty and the role of the jury, at least with specific reference to Martin v. Herzog?
3. Can you describe the "rule" from Martin?
4. What is the role of the legislature's intent in Telda?
5. Why do we allow circumstantial evidence in the first place?
6. Create a list for yourself about the evidence that was admitted in Negri.
7. What kind of evidence do you think would have sufficed in Gordon?
8. How do the business practice rule and res ipsa loquitur help plaintiffs?
Problem: Negligence Per Se Problem
Reading:
CB 379-388 (including Harper v. Herman, Farwell v. Keaton)
Randi W. v. Muroc Joint Unified School District
(You will be put in role for the hypo assignment at the end of this class)
Reading:
CB 431-441 (including Tarasoff v. Regents of the University of California and In re September 11 Litigation)
Moore v. The Regents of the University of California
Questions while you read:
1. With respect to the four-ish elements of any negligence action (Duty, Breach, Causation, Damages), what is different about the cases we've discussed up to now and the cases we are reading for today?
2. What are some of the reasons why there is no general duty to rescue? What are the exceptions to that general no duty rule?
3. In Harper, would there have been a different result had the plaintiff announced he was going to dive into the water?
4. What if Herman was the one that invited Harper on the boat?
5. What if Herman ran a charter boat service and Harper was a member of the party that hired the boat?
6. What if Harper actually asked Herman if it was safe to dive?
7. What is the difference about the duty question in Randi W. and Farwell v. Keaton?
8. When does the duty to act get triggered in Randi W. and in Tarasoff?
Problems: Affirmative Obligations Problem
Reading:
CB 390-400
Reading:
CB 400-416
Election Day
Problems: Another Duty and Breach problem
Watch this recorded lecture before our next class on November 9
Reading:
CB 294-311 (including Stubbs v. City of Rochester and Zuchowicz v. United States)
Reading:
CB 319-327 (including Summers v. Tice, Sindell v. Abbott Labs, Hymnowitz v. Eli Lilly & Co.)
Questions while you read:
1. What is "cause in fact" and what is "proximate cause"? The definitions may not click immediately. Come to class with some examples that you think describe the difference.
2. Stubbs is a case about causation, yes, but it's really a case about proof. Identify precisely what proof was offered on causation. Then, challenge each piece of evidence as if you were defense counsel. Come to class with specific arguments against.
3. Describe the Daubert standard and apply it to Zuchowicz. Did the plaintiff prove the case?
4. Why do multiple defendants pose unique cause in fact problems? How do courts get around those problems?
5. Who was held liable in Summers v. Tice? Why? Should they have been?
6. How is Hymowitz different than Stubbs?
7. What are some arguments in favor and against the method for apportioning fault in Hymowitz?
8. Given the cases we read on market share liability, what do all the cases where market share liability was used have in common?
Problems:
Watch this recorded lecture before our next class on November 16.
Reading:
CB 334 (just the intro, not the Ryan case)
CB 339-350 (including Benn v. Thomas, Polemis, The Wagon Mound)
CB 353-358 (including McLaughlin v. Mine Safety Appliances and Nallan v. Helmsley-Spear)
Reading:
CB 361-368 (including Palsgraff v. Long Island Railroad and Wagner v. Int'l Railroad Co.)
CB 368-374 (through Note 1 only) (including Petition of Kinsman Transit Co.)
Questions while you read:
1. What is the difference between proximate cause and cause in fact? Come to class with a hypothetical example that illustrates the difference and how they operate together.
2. Map the causal chain in Polemis. Try to get in the habit of mapping it out on a piece of paper as you read. This helps understand what happened.
3. What is different about the causal chain of events in Polemis and The Wagon Mound? Can the difference explain the different holdings?
4. What are some policy arguments that justify the Polemis rule? What are some policy arguments the justify the Wagon Mound rule?
5. Do you agree with the majority or the dissent in Palsgraf v. LIRR? Will you ever ride the LIRR again?
6. Why do we pity Mrs. Palsgraf, or why is what happened to her a shame? How does that speak to proximate causation?
7. Take particular note of how Judge Cardozo describes the facts. Note his language. It's masterful. Now, compare it to Judge Andrews's.
8. What is the central disagreement between Cardozo and Andrews?
9. How do the facts in Palsgraf differ from the facts in Wagon Mound?
Problems: Causation Problem, Another Causation Problem
Reading:
CB 253-263
Reading:
CB 268-281 (including Murphy v. Steeplechase Amusement, etc.)
Questions while you read:
1. What are some of the central justifications for a contributory negligence regime? What are some of the central justifications for a comparative negligence regime?
2. Why have different jurisdictions opted for a "pure" comparative regime while some have chosen a "modified" comparative regime?
3. How does comparative negligence play out in medical malpractice cases, if at all?
4. How does Judge Cardozo describe the plaintiff and the situation in Murphy v. Steeplechase Amusement?
5. Can you identify the "rule" of Steeplechase? Now, make it big. Make it small.
6. When can participants in sports be negligent? Should they ever be? Isn't that paradigmatic assumption of risk?
7. Why should assumption of risk remain as a defense in a comparative negligence jurisdiction? What are the arguments against?
Reading:
Intrusion Upon Seclusion & Nader v. General Motors (83-85, only through the majority opinion)
Gill v. Hearst Publishing, Daily Times Democrat v. Graham (111-117)
Sipple v. Chronicle Publishing (123-125)
Questions while you read:
Can you find a pattern in these cases to explain why some turn out one way and others turn out differently? This is what we will do in class.
Reading:
CB 118-132 (the Rylands v. Fletcher cases)
Questions while you read:
How is strict liability different from negligence?
What are the rationales for having a regime of strict liability?
Explain the narrative of Rylands. Are these situations common in modern times or is this something that would have only happened back then? Can you think of some examples of similar types of behavior that would warrant strict liability today for similar reasons as strict liability was justified in Rylands?
Watch this recorded lecture before our next class on December 7
Reading:
CB 534-546 (including Winterbottom v. Wright, MacPherson v. Buick, Escola v. Coca Cola)
Reading:
CB 554-561 (including Barker v. Lull Engineering)
Questions while you read:
What was the process by which individuals could obtain damages for defective products before MacPherson?
Explain the positives and negatives of the MacPherson approach.
How is Traynor's decision in Escola different? What kind of tort regime is he calling for here?
What are the differences between manufacturing defects and design defects?
What is the design defect standard laid out in Barker?
Whose expectations govern when it comes to design defects analyses? What kind of consumer?
In Soule, the plaintiff argued consumer expectations, but the court said it was inapplicable. Why?
What is the standard the court used in Soule, if not based on consumer expectations?
Problem: Strict Products Liability problem
Reading: None.
This review session will be entirely run by you. Come with questions, and I'll answer them as best I can. Our TA's will also schedule review sessions. And, of course, you also have Slack to ask questions.