TortsProf is having a tortopalooza this week as numerous commentators are discussing what they think students should learn in torts. In a very summary form, there is is an interesting discussion about the practicalities of tort litigation versus an Ivory Tower theory of torts. Being RiskProf and not TortsProf, I have my own take on it especially after sitting through a very leagalistic class discussion where we examined Boomer v. Atlantic Cement Company (I can’t recall my kids names, but I can remember a case I read in law school 25 years ago!). Boomer is a trespass case where the cement company was dumping cement particles on its neighbors. The remedy turned out to be a payment for the continual trespass rather than shutting the company down. There was a big discussion about why the company wasn’t shut down. I learned who all the anti-capitalists were and there were large number who wanted to shut the company down. I raised my hand and said something to the effect that this was a very economical decision in the sense that there was arguably profits generated from the cement company and we shouldn’t shut it down unless the costs of the company outweighed the benefits. The professor ridiculed that answer and yelled something to the effect of “Is that what are you going to tell your client?” I was shocked by the vehemence of the response and being a newbie 1L, I just kept my mouth shut. That one class period made me decide I didn’t want to be a lawyer (and everyone is happier as a result).
I think torts should focus, in part, on the Ivory Tower aspect of the effect of liability law on the economy too. In fact, I’d like there to be a discussion of liability systems and the objective of liability systems. No one really talks about the optimal lability system and its role in minimizing the social cost of liability. If we had such a discussion, we’d see that some things are properly left to the tort system, some to regulation, and some to the insurance system. I could be wrong (and some of the commentators mention this), but I don’t see lawyers in training being exposed to this Ivory Tower look too often. These discussions are in the literature but do not seem to be in the professional syllabus.