The Situationist

Archive for February 11th, 2014

Situationist Torts at Harvard Law School

Posted by The Situationist Staff on February 11, 2014

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From The Harvard Law Record (an article by Sara Murphy, Jessica Ranucci, Sean Cuddihy):

From the first day we marched into Professor Jon Hanson’s Torts class, it was clear that the course would not follow the traditional 1L torts syllabus. Professor Hanson, who is the Alfred Smart Professor of Law and Director of the Project on Law and the Mind Sciences, is well-known for his unusual course structure and material. He was charged with teaching us Torts last semester, but what we learned transcended the bounds of the traditional 1L curriculum. Professor Hanson teaches what he calls “situationist torts,” an approach to the law based in ideas from the mind sciences. He frames legal issues in terms of the “situation” and “disposition” of the actors involved, and demonstrates how legal institutions overemphasize the role of people’s dispositions (their freely made choices) when understanding and responding to problems. It is through this frame that he took us on an in-depth exploration of the evolution of tort law, from verses in the Torah to the present.

The class departed from many 1L pedagogical conventions. We read fewer cases, and for those we did study, we delved into the social and historical context. During a few class meetings we even engaged in imaginative reconstructions of the facts to help bring our presuppositions to light. There were no traditional cold calls. In the classroom, we focused on tort doctrine less than our peers— Professor Hanson provided us with videos and outlines so that we could efficiently learn the doctrine at home. For the final stage in our tour of the history of torts, we explored what Professor Hanson calls “Frontier Torts,” which are wrongs for which there currently exists no remedy in the civil legal system, but that could be on the edge of the expansion of liability. We spent weeks working in large groups on a final project applying situationist and dispositionist viewpoints to real-world problems. Most of us would agree that Frontier Torts week, which included presentations by our classmates and attorneys who are fighting on the frontiers of tort law, was the most memorable week of the semester. Even our final mandated that we apply our understanding of tort law to work towards fixing one of the largest problems facing America today.

Not everyone agrees with Professor Hanson’s ideas. Not everyone needs to. But we believe that generations of his students will remember his approach to understanding the law. Making whatever argument we can get away with to advance our side and presenting that argument as strongly as possible are important skills we learn throughout law school and will continue to develop throughout our legal careers. However, we believe that in the current 1L curriculum there is insufficient focus on the implications and motivations of the arguments we make and evaluate. Professor Hanson is one of the few 1L instructors to focus squarely and consistently on filling this educational gap. When the details of the cases and doctrine we’ve had to learn in most of our 1L classes have faded, his ideas will remain. They are applicable across subjects, and heighten our analytical abilities. We gained a framework for thinking about the law. We learned how to approach problems from a particular point of view. We learned how to recognize a pervasive type of bias.

We believe that Professor Hanson’s approach should play a greater role in the 1L curriculum and the legal profession. Essentially, it is the liberal arts educational ideal realized in the law school classroom. It taught us a mode of inquiry that is broadly applicable across situations. We then used that mode of inquiry to look at torts cases and understand why particular decisions may have been made, and to consider real, pressing societal issues and our approach to solving them. Our section may not be the best at telling you about the details of trespass to chattel, but we can pick out motivated reasoning and we can think creatively about how we, as future lawyers, can expand the frontiers of tort law to protect those who have been harmed in ways that are not yet recognized. What Professor Hanson left us with is a sense that we can do something about the problems that are encapsulated in (or omitted from) the law. Knowing how to clarify our thinking and address those problems by considering situational factors and challenging traditional assumptions seems more important than being able to regurgitate the Restatement (Second) of Torts.

Ohio attorney James D. Dennis, a guest speaker in our class and the winner of the 2013 Frontier Torts Award for his work to find civil remedies for workplace sexual harassment, wrote to our class about Professor Hanson:

“His teaching methods not only hone your abilities to think effectively like the excellent members of the bar and bench which you all are going to be, but also energize you to want to do it.” We couldn’t agree more. We would like to see more 1L classes that veer away from the traditional doctrine in favor of a more holistic and real-world pedagogical approach to each area of the law.

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