Posted by The Situationist Staff on July 11, 2008
Situationist contributors Jon Hanson and Michael McCann recently posted on SSRN a draft of their forthcoming law review article, Situationist Torts, 41 Loyola of Los Angeles Law Review _ (forthcoming, 2008). SSRN has announced its Law & Psychology Top Ten and Legal Education Top Ten lists and Situationist Torts placed in the top 10 on both lists.
To download Situationist Torts for free click here. That link will direct you to the abstract and various download options.
Update: Situationist Torts has also earned a top 10 spot on SSRN’s Legal History Top Ten.
Posted in Education, Law, Legal Theory | Tagged: law and psychology, law review article, Legal Education, loyola of los angeles law review, situationist torts, SSRN, top 10 ranking | Leave a Comment »
Posted by Jon Hanson & Michael McCann on July 7, 2008
We recently posted on SSRN a draft of our forthcoming law review article, Situationist Torts, 41 Loyola of Los Angeles Law Review _ (forthcoming, 2008). Our article’s abstract is excerpted below.
* * *
This Article calls for a situationist approach to teaching law, particularly tort law.
This new approach would begin by rejecting the dominant, common-sense account of human behavior (sometimes called dispositionism) and replacing it with the more accurate account being revealed by the social sciences, such as social psychology, social cognition, cognitive neuroscience, and other mind sciences.
At its core, situationism is occupied with identifying and bridging the gap between what actually moves us, on one hand, and what we imagine moves us, on the other. Recognizing that gap is critical for understanding what roles tort law (among other areas of law) serves. Beyond that, a situationist approach helps to make clear the subconscious tendencies and otherwise unappreciated external forces that have shaped tort law and tort reforms. A situationist perspective on tort law, this Article argues, also has significant implications for how tort law is taught.
The Langdellian model of teaching, which has monopolized the law school classroom since the late 19th century, has been the brunt of increasing criticism over the past several decades. Most critics emphasize that the casebook method forces the round complexities of law, lawmaking, and human behavior into the square holes of antiquated legal categories and idiosyncratic appellate decisions. A number of leading law schools are now dramatically reshaping their curricula to address such concerns.
Simultaneously, legal theory is in the midst of its own revolution as legal scholars are beginning to reject the hard-core dispositionism at the foundation of law and to incorporate, or at least acknowledge, emerging insights from the mind sciences.
The curricular and theoretical renovations underway represent what we would call a turn toward the situationist. Those trends have created a hospitable climate for the emergence of a more robust situationist approach to law and law teaching. This Article describes not only those trends and their implications, but also some specifics regarding how situationist torts would be taught and what a situationist torts casebook would look like.
* * *
To download the article for free, click here. That link will direct you to the abstract and various download options. We hope you have a chance to read Situationist Torts. Also, we thank Larry Solum of Legal Theory Blog and William Childs of TortsProf Blog for posting on our article.
Posted in Abstracts, Education, History, Law, Legal Theory | Tagged: Christopher Columbus Langdell, law review article, law school classroom, pedagogy, situationist torts | Leave a Comment »
Posted by The Situationist Staff on June 7, 2008
Kyle Graham recently posted his article, “Why Torts Die” (forthcoming 35 Florida State U. L. Rev. (2008)) on SSRN. Here’s the abstract.
* * *
Alienation of affections. Claims for insult. Maintenance and champerty. Suits against saloonkeepers for spousal alcoholism. These are just a handful of the many torts that have disappeared, or are presently passing into history. Why Torts Die examines why these and other torts have vanished or are in danger of extinction. The central thesis of Why Torts Die is that the collapse of a tort typically owes to a confluence of compromising conditions or events. Changes in the ambient cultural atmosphere may threaten a tort theory, but the effects of these changes will be magnified or mitigated by several other factors: the nature, quality, and volume of critiques directed against the tort; the interests and limitations of the audiences that decide whether to retain or reject the cause of action; the relative power and influence of the tort’s opponents and supporters; the availability and desirability of alternatives to the tort; and the intrinsic qualities of the threatened claim itself. To flesh out the hypothesis that most defunct torts haven’t simply fallen victim to sudden cultural downdrafts, Why Torts Die offers three case studies, each detailing how a gravely endangered tort or torts came to find itself in that condition. This review of the diminutions of the tort of insult, of obesity lawsuits, and of the heartbalm torts (alienation of affections, breach of promise to marry, criminal conversation, and seduction) suggests that the disappearance of a tort is typically a complicated affair, implicating several of the factors discussed above.
Posted in History, Law, Public Policy | Tagged: legal history, situationist torts, tort law, Torts | Leave a Comment »