Thanks for joining this episode of the No. 86 lecture series, where we discuss basic principles and applications of Tort Law along with landmark cases. Today's episode features Gregory Dolin, who is a Professor of Law at the University of Baltimore, where he teaches Torts, Contracts, Property, Intellectual Property, Federal Courts, and Constitutional Law. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Dolin, thanks for joining us today. Let's start with the basics - what knowledge do students typically have about tort law when they first enter your classroom? And why are students required to take torts classes? Students come in, some will come, come in with lots of knowledge because they come in from a lawyer family, or they may have worked in a law firm as paralegals or whatnot. And some come with no knowledge whatsoever. And some, and some come in, even worse, with incorrect knowledge. So because some of 'em know about tort law from, you know, media reporting, which sometimes is sensationalized. So I think everybody sort of knows that tort is about the study of injury and compensation for the injury, but they most likely don't know what kind of injuries are compensable. You know, “are there limits?” Where you know, who do you sue and who can't you sue, et cetera. In my law school, both the one that I attended and the one where I teach, torts is the first semester course. I know schools where it's second semester. I know schools where it's both semesters. I don't think I know any schools where it's optional. You know, I actually always ask students, like one of the first questions I ask 'em, because torts is in my school first semester, and sometimes it happens it's the first day of courses because, you know, we run usually courses Monday through Friday and sometimes torts is assigned on Monday. and sometimes if it's early in the day, sometimes maybe not only a first semester, first day, but maybe literally the first course that they have. And so they get their first question often from me and I ask, kind of, “why are you here”? And I say, beside the fact that the dean told you you have to be because you have, you need that to graduate. I asked them, how many of you plan to be personal injury attorneys? And actually a few hands go up. Most people don't at least initially come into school thinking that that's what they're gonna do. Not that there's anything wrong with that, but maybe because they don't know what they're gonna do. But actually not that many hands go up. And so I ask, well, why are you here? Why do you think this course is being taught to you? And eventually we get to this answer that torts, unlike almost any other first year course, is really perhaps the only place where common law is still king. That's interesting - how does tort law's basis in common law make it unique compared to other first-year courses? There's a lot of common law in property, but we also have a lot of statutory law in property. In contracts, of course, we have uniform commercial code, which is at least half of contracts law. In constitutional law of course, we have the Constitution. In criminal law of course, we have, you know, a uniform criminal code. Where tort law, there are very, very few statutes and it is really about reasoning by analogy and learning, as the old saying goes, law schools don't teach you how to be a lawyer. They teach you how to think like a lawyer. And so what law, what torts does, and which, why, which is why if I were, you know, king of the universe or king of all law schools and deciding how to structure a curriculum, I would always keep it as the first semester course. Because I think what torts does is help, uh, students. While, it may not directly relate to property, it may not directly relate to Con Law, but it helps students understand how courts work, how they reason by analogy, how there's an evolution of theories. Could you give us an example of how tort law has evolved historically in the common law? So, for example, for a long time, before somewhere around the 19th or so century, there's really no concept of negligence. It was mostly all kind of strict liability, basically. Look, you injure somebody, you pay. That's it. As technology evolved as we understood that, look, you can be, you can be very, very careful in operating your technology, and yet, so for a case, the first case I teach on negligence is a case where a person operates a boiler on his property somewhere like early 19th century. And by all accounts, that person is very careful. He does everything right. He makes sure that the pressure doesn't go beyond what's supposed to go to, and yet, new technology, the boiler explodes and the flying shrapnel lands on a neighboring yard causing some sort of damage. And a neighbor says, well, it's your boiler, right? So you, and you damaged my yard, so you ought to pay for me. And the court says no, because he took all due care and sometimes bad things happen. And the court said that's okay because the entire society benefits from having boilers. You know, it's nice to take a hot shower, right? It's nice to be able to warm yourself up in the winter, uh, without having to go into the forest and chop wood. And so the court says, again, and this goes back to this idea of cost benefit and internalizing your cost and benefits, saying, look, entire society benefits from having this new technology. Unfortunately, part of the new technology comes with all, comes with a territory that sometimes somebody will randomly be injured. But that's a very historical development, right? And so that's why I think torts doesn't directly relate to property or necessarily contracts or criminal law, but it does help people kind of put their minds into, into the frame of thinking like a lawyer and why we're getting from point A to point B. You mentioned starting your class with a classic case. Could you tell us about that and why it's a good introduction to tort law? So I start the class with a very classic case that's taught in, in most law schools, I start class with Vosburg versus Putney. It's a classic battery case, and it seems like a very, very easy case. But students do oftentimes struggle with it because it seems that a lot of what happened was unintentional. And the basic facts of the case are, so this happened in mid 19th century Wisconsin. This kind of uh happened in a one room school in the middle of winter. Kids were playing at a recess and then recess was over. Teacher called the class to order, and then one kid tapped the other kid on a foot with a toe with his toe. By all accounts it was a slight tap. It was not like a kick. He was not trying to beat him up. Maybe he was trying to get his attention to pass him a note or anything, but something was wrong with the person who was hit. He apparently had a prior injury, and so a few seconds later he just starts screaming in pain. He gets sent home, he has to have like two surgeries. Doctors think that he'll lose his leg. And fast forwarding several decades later, it turns out things were fine. He actually, he lived a perfectly normal, healthy life. The only limitation was he wore a leather leg brace for the rest of his life, but got married, had kids, actually managed to leave a good amount of money to his family. But, at the time, it was a kind of, this drastic thing came out from a light tap on a foot. And like I said, it's an easy case in a sense. Like there's, you know, there's not complicated statutory law. There's not. It's just one kid hitting another. And the question is, is this battery? And the rule is very simple. Any unconsented to touch is battery and this touch was unconsented precisely because the teacher has called the class to order and people were, pupils were supposed to sit, you know, quietly listen to the teacher, and instead, you know, the, they weren't. The reason students struggle with it is because the action causing the injury and the amount of injuries are so disproportionate. Students often struggle like, well, why should you know when I, all I wanted to do is tap this person's foot to get his attention. Boys do this in class all the time. Kind of boys will be boys thing; why should he pay these crazy amounts of money for this entirely unforeseen injury? And so we spent actually a whole day talking about this, whether this makes sense. So that's kind of how I start teaching torts. How do you structure the rest of your course after covering that initial battery case? What other types of torts do you teach and do you cover the defense justifications? So I spend about maybe three or so weeks doing intentional torts. So I started out with, battery, then I move on to assault, which is just like battery, except the touch is not complete. So that's kind of when you come and shake your fist into somebody's face saying I'm about to hit you, but you never do. So you create an apprehension of touch. We talk a little bit about intentional infliction of emotional distress, which I find to be not a difficult tort to teach, but very difficult for students to understand. And so far as they love this tort, they think that, you know, finally somebody takes into account our feelings and how we feel. And, but then they think that almost anything that goes wrong in a world of torts you can shoehorn in one way or another into intentional infliction of emotional distress. You know, I give an exam, it's like there's a car accident and somebody's grievously injured. It's like, well, and also intentional infliction of emotional distress because how dare you drive the car so recklessly. And it's hard to kind of, to wean them off of it saying it. No, it's a very actually narrow tort, it's intentional. It's about intentionally causing that distress. Going into somebody's house and saying your loved one is dead in a gruesome accident, thinking that's a practical joke, but, you know, causing obviously the person to suffer significant emotional damage from such, you know, fake news. So that's what I do for the first three weeks. So I do assault. I do battery. I do, IIED. I do trespass. And then I do some defenses to those stories. So for example, justification defense, defense of property, defense of necessity. So can you trespass on somebody else's land if, for example, you're trying to save your life or the life of others? Can you, for example, set up spring guns if, you know, your property is constantly being robbed and so can you set up basically deadly traps for the unwary? And then I move on to kind of spend the rest of the semester about two thirds of it on negligence. And sometimes if we have time in the last couple of classes, we, we get to strict liability, although that hasn't happened in a while. What would you say are the primary goals of tort law? What is it trying to accomplish? So there are different goals of tort law, and it oftentimes depends on who you ask and difference of philosophies of tort law. But broadly speaking, one is to compensate the victim to try to put the victim in as good of a position he was in prior to the injury happening. So, you know, you get into a car accident, somebody smashes up your car, that costs you, I dunno, $10,000 to repair it. So as the person who ran into you ought to pay you the money. The other goal of tort law is, deterrence it is similar to criminal law, right? So for example, if you force the person who rented your car to pay the money, maybe next time they'll be more careful. As well as the people in society generally will know, Hey, if you drive recklessly, you'll have a higher chance of getting into an accident, which means I may have to pay money out of pocket, and generally we wanna avoid doing that, so maybe I will not drive as recklessly. The, you know, the third goal of tort law is, kind of this idea that it's essentially it's wealth redistribution, but not in any sort of socialist way, but in a way that, if you engage in activities, in a particular activity, you usually have some benefit from it. And whether it's, you are selling things, whether you're driving around, because you just enjoy driving around or you, or whatever it is that you do, generally you do these things because you derive some benefit from it. And if you do, the idea is you should also bear whatever cost that activity has, as well, right? So that you don't externalize costs to others, while keeping benefits to yourself. So in that sense, we redistribute your wealth in a way to, balance basically to, to make you bear the cost as well as benefits of the activity. Efficiency is another goal of tort law, right? So again, this idea that if it becomes too expensive for you to drive in a particular way, if it becomes too expensive because, so the, the cost of society are very high, in engaging in a particular activity, you might want to stop doing that or do it in a different way. So, and that is more economically efficient. So there's a variety of goals of tort law. You know, there's some, individuals argue that pure kind of morality, right? So basically behaving in a right way is a goal of tort law. So there's, and oftentimes in any given case all of those goals might point in the same direction saying, because of all of these goals, the plaintiff should win or lose. And sometimes they point in different directions and judges and jurors have to weigh which one should ought to predominate in any given case. That's a helpful comprehensive overview. Do you find torts an enjoyable subject to teach? Are there any specific techniques to make the material more relatable to students? I think Torts is in many ways the most fun course. Certainly I think the most fun out of 1L courses, as I call it. Again, I usually, on the first day of class, I tell students, torts is the study of human foibles. It's a study of oftentimes funny, silly stories. Yes, sometimes they do unfortunate, tragic consequences, but oftentimes they're just kind of stupid things that people do. And, you know, we all have done stupid things in our lives, and hopefully, eventually we learn to laugh about them. And that's what torts is. I often show my students this cartoon from Calvin and Hobbes where, it's a strip where Calvin is sitting there watching TV and eating a bowl of cereal and turns to Hobbes and says, you know, this is what I love about Sunday: sugar, TV, and falling anvils like, and because he's watching that cartoon. And so that's what torts is. And I think he also is like idiots and falling anvils. Like that's oftentimes what torts is. And yes, we do have to remember that there are injured parties and they're actually real people sometimes being hurt. But nevertheless, it's, you know, if you, and also torts something that most of us have experienced, most of us have been either in a car accident and most of us have, you know, tripped and fallen somewhere. Or, you know, most of us have done something that we probably should not have done, whether somebody was injured by that or not. So I think if somebody's not excited by torts, you know, I then question whether they're in the right place. Now, in terms of what do I try to do? I usually try to relate it to tell 'em, like, look, this is not just dry law books. This happens in real life. I tell 'em the story about how I was pushed off a moving train. I tell 'em a story about how like, our house nearly caught fire. I tell 'em that story. So I teach this, for example, a case called Andrews versus United Airlines, written by then Judge Kazinski, where the plane lands and somebody reaches into the overhead bin, reaches for, a suitcase and a suitcase falls and injures a passenger. And the lawsuit is like, well, United should have done more to prevent it. And United's like, what do you mean? We, we told you items could have shifted. To which Judge Kazinski says, well, number one, great you did, but nobody knows how they've shifted until they actually opened up the, you know, the, the baggage compartment and by that point it may be too late. And two, it ultimately says, look, we're not saying United did something right or wrong, but it's a question for the jury whether more could have been done. And when I teach this case, I tell 'em how I was once on a flight from Tel Aviv to New York, and I was sitting in an aisle seat and this mother was reaching over my head to take out a suitcase because her child needed something and she dropped a suitcase right on my head. And the mother didn't speak any English, and so all she did is tap me on the shoulder and said that you'll be fine and then moved on. And so I try to relate to these humorous stories. Luckily, I was fine. She was right. But I tried to relate these stories to, what has happened to me, what has happened to my family, what, you know, or as, as students, what similar like that happened to them. Sometimes they volunteer those stories, and you know, so I try to relate to kind of to everyday life but at some point, right, if that kind of doesn't speak to you, then it doesn't speak to you. I get it. But I, for me, and I teach a number of 1L courses, I teach Torts, I teach contracts, I teach property, and I love all of them for different reasons. But I think Torts is the most fun to teach. I think Torts is the most fun to learn. Thank you for listening to this episode of the No. 86 Lecture series on Tort Law. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it's released. You can also go to no86.fedsoc.org for lectures and videos on Federalism, Contracts, Jurisprudence and more. Thanks for listening. See you in class!