Frank: Two Ideas

This post is part of the series of guest posts addressing various authors’ views of what should be taught in torts courses.

Ted Frank is Resident Fellow and Director of the American Enterprise Institute Liability Project.  He frequently blogs at Overlawyered and Point of Law.

The question of what tort law students should be taught that they’re not taught is a tricky one, in part because there is no one “torts class.”  My torts class at Chicago got split between two different professors, and they had entirely different approaches, lecturing styles, views on class participation, and editorializing.  A class using the Farnsworth & Grady casebook is going to have a different view of the world than a class using Epstein’s casebook, and both will see things that aren’t seen in more conventional casebooks.  Too, “Torts” is a big subject; the type of tort law seen by top-six law-school graduates going to work at big firms is a different animal than day-to-day auto-accident PI work, and problems with the one may or may not be problems with the other.  For example, I agree with just about everything Arnold Friede says, but, on the other hand, many many law students will never see a consumer class action in their careers.

But let me throw two ideas out there.  First is the concept that the “chilling effect” spoken of quite aptly in cases like New York Times v. Sullivan applies to more than just free speech, but also to positive economic activity.  Perhaps we as a society are willing to accept the cost to jobs and pharmaceutical development and quality of life that comes with unbridled tort liability, but that should be a decision made by the elected representatives of the people, rather than something imposed by fiat by a judiciary following the whims of law professors and activists.  I won’t say that every law school fails to teach this (Emory’s Paul Rubin and FSU’s Jon Klick assured me otherwise at a recent panel I was on), but too many lawyers I communicate with seem unaware of this concept.

As I was trying to put into words my second idea, I came across a very recent Frank Easterbrook opinion where he does it much better than I would have:

“[There are] problems potentially caused by comprehensive discovery. A large firm… with thousands of employees generates mountains of internal paper. Some of the employees are bound to take almost any view about almost every subject.”

Someone can go through three years of law school without understanding the degree to which the trial of a case with a corporate party is really all about this game of document-search and construction of a fiction around supposed smoking guns.  I think it’s pedagogically important to recognize this, because it leads to other questions that are important and underexplored in law schools.  Is the adversary system well suited to resolve truth in the face of such game-playing?  If not, what are the costs of the errors?  Might there be questions or entire classes of questions where the judicial system is bound to make things worse?  If so, what does that imply for the increasing use of the tort system to resolve public-policy questions?