Does Topic Sequence in Teaching Matter?

What are we really teaching our students?  Those of us who complain that our students are too focused on learning rules and doctrines should read a provocative empirical study recently published on SSRN by my colleague Don Gifford, Villanova sociologist Brian Jones, and two of Don’s former students with expertise in statistical analysis, Joseph Kroart and Cheryl Cortemeglia. Donald G. Gifford, Joseph Kroart, Brian Jones & Cheryl Cortemeglia, What’s on First?: Organizing the Casebook and Molding the Mind, 44 Ariz. St. L.J. ___ (2013) (forthcoming).  The article describes an empirical study suggesting that whether the Torts professor begins with intentional, negligent, or strict liability torts affects the students’ understanding of the role of the common-law judge in a statistically significant way. The authors argue that the judge’s role in deciding intentional tort cases is at least to some extent more rule-based than her role in negligence and strict liability cases. Applying the work of sociologist Eving Goffman, they posit that beginning with intentional torts frames the judicial role in this manner. Further, they hypothesize that once frequently anxious first-semester students latch onto one particular conception of the judicial role during the initial weeks of the semester, it becomes anchored and resistant to change even after the students have studied other categories of tort liability.

Gifford et al. surveyed more than 450 first-year law students at eight law schools that vary widely in terms of their
reputational ranking. The students were surveyed at the beginning, middle, and end of the first semester. The survey results supported the authors’ hypothesis that students who begin their study of Torts with strict liability experience a greater shift toward understanding the judge’s role as being influenced by social, economic, and ideological factors and a sense of fairness and less as a process of rule application than do students who begin their study with either intentional torts or negligence.  Even when the authors controlled for the ranking of the law school, topic sequence still generated a significant effect on students’ perceptions of the role of the common law judge.  Nor did the effect of topic sequence vary by gender. The authors were surprised to find that students who began with intentional torts experience a greater attitudinal shift toward perceiving the judicial role as being policy influenced than do students who began with negligent torts.

Despite their disclaimers, the authors implicitly criticize the overwhelming majority of Torts professors who begin with intentional torts. Most Torts casebooks begin with intentional torts, at least after a brief introductory chapter.  Their editors claim that these cases are “accessible,” “memorable,” and provide “a nice warm up” for studying other torts. Some of these same editors admit that intentional torts comprise a “backwater” in modern tort practice. Gifford et al. suggest that the real reason for beginning with intentional torts may be because that is the way it always has been done. They note that the first Torts casebook, edited by James Ames Barr, Dean Langdell’s colleague, began with intentional torts. They provocatively suggest that Ames may have begun with intentional torts in part precisely because these torts were most rule-like in nature and furthered Langdell’s mission to make the law appear “scientific” in order to justify its inclusion within the university curriculum. If this is true, note the authors, then most modern-day Torts professors are “unwitting conscripts” in the Langdellian mission.

The authors carefully acknowledge that correlation and causation are not the same things.  It could be that those professors who choose Torts casebooks beginning with strict liability torts would have taught more policy-oriented courses even if they had begun with intentional torts. They also recognize that obviously other courses and variables influence students’ thinking, but this merely strengthens the finding that the single variable of topic sequence in one particular course affects students’ perception of the judge’s role in a statistically significant manner.

The importance of the article transcends pedagogy. Debates rage about the appropriate role of the common law judge. Some conservative critics still argue that judges should scrupulously follow rules and doctrines derived from earlier cases. Gifford et al argue that to a very large extent, the nature of the appropriate decision-making process of common law judges is determined by judges and lawyers themselves within the craft and tradition of what they understand the common law process to be. First-semester Torts represents the first encounters of future judges and lawyers with the nature of the judicial process.

The authors note that professors teaching courses other than Torts also sequence substantive topics in different ways and that these choices may subliminally impact students’ thinking about the legal process. How, for example, does a decision to teach the civil liberties portion of constitutional law before the governance cases affect students? Or teaching the rules before jurisdiction in civil procedure? The article draws these issues to our attention and hopefully encourages others to engage in similar empirical studies.

There are limits to the authors’ analysis. It would be far better if the study had found a way to hold constant for the pedagogical objectives of professors beginning at various points in the Torts curriculum. Further, how long does the impact of first-semester topic sequence last? Does it survive the second semester? The last two years of law school? The first five years of practice? Despite leaving these questions unanswered, Gifford, et al. encourages us think about the important lessons we teach when we focus only on teaching the discrete topics explicitly identified in the table of contents. As an aside, I have been itching to teach torts and have argued that strict liability is the optimal way to approach ultrahazardous databases of personal information given the profound power imbalances and lack of mutuality of risk–feeling better about beginning there ever more now.  To be sure, their word should not be the last on this issue, but their important contribution challenges teachers to be more sophisticated in their teaching choices and scholars to carry on the research agenda they have begun.

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5 Responses

  1. Orin Kerr says:

    Sounds like an interesting paper. I suspect the limit you mention at the end is pretty significant, but interesting nonetheless.

  2. The paper notes on page 49: “It could be that professors who choose casebooks beginning with strict liability torts are those who would teach a more policy-oriented course regardless of which category of tort liability appeared first in the casebooks they adopt.” In a footnote, it continues, “We considered conducting an additional survey of the professors whose students we surveyed and attempting to hold constant for professors’ expressed pedagogical goals, but decided against it out of concern for reliability.”

    For me, this limitation makes it impossible to draw conclusions from the study. It seems unwarranted to attribute a difference in student attitudes to the choice of casebook while leaving aside the daily influence on the students of the professor who picked the casebook.

    And while the N of students is large, the Ns of casebooks, professors, and classes are all small. A casebook can have a strong influence through factors other than the order in which it presents topics. Because there are only two negligence-first casebooks and one strict liability-first casebook, their editorial philosophies will loom large. Even among the intentional-torts-first casebooks, as the study notes, Prosser dominates the market. None of these effects are easily isolated, not without a significantly more ambitious study.

  3. A.J. Sutter says:

    The fact that the survey is limited to first-semester 1Ls is highly significant. This seems like an attempt to win academic prestige for using empirical and statistical methods, without the burden of choosing an important question to investigate. (I shouldn’t single out these authors for adopting such a get-rich-quick scheme, though “rich” probably deserves scare quotes.)

    For one thing, if students have taken only a piece of the torts curriculum at the time of the survey, why should it be a surprise that their views of the topic are shaped by the partial chunk to which they’ve been exposed?

    For another, for legal teaching to “matter,” one needs to look at attitudes (or some other metric) after graduation. Students’ impressions of the role of judges, or whatever, has negligible impact on the world while they are still in school. And then it will be very difficult to separate out what are real influences. I’d almost suggested here that one might look at scores on MBE torts-related questions to see if casebooks make a difference (assuming the relevant data were even available), but even those results will be colored by bar review courses.

    I wonder if the study’s real significance is as a symptom of law professors’ insecurity about whether what they’re doing makes any difference. Maybe the use of statistics is a way to defend themselves from the flak they’ve been taking in the press and some recent books. In the spirit of the misguided Zeitgeist gripping the world and esp. the States currently, the apparent assumption is that any benefit faculty bring has to be measurable quantitatively.

    For most classes I enrolled in, a commercial outline was sufficient for getting a decent or even excellent grade, which is all that most students really care about. I did benefit from a certain minority of classes with outstanding profs, but 30 years on I can tell you that any benefit I got was very qualitative — and having a lot more to do with ethics, justice, integrity and thoroughness than with doctrine. The real significance of casebook choice might be to find one that (i) avoids alienating students with a text that’s too chopped-up, too boring, too inscrutable, or too erudite about academic theories, etc., while (ii) being comfortable enough for the prof so that she or he has a chance to be outstanding.

  4. This is continuing to scratch at me, which is a good sign of an interesting paper. One way of putting the question is whether it is the order of the three pieces of the curriculum that matters so much as the emphasis given to them. Whatever comes first will be prominent by dint of being first and learned by students as being “typical.” But it’s hard to disentangle this from books’ — and professors’ — attitudes towards the subject.

    So, for example, I learned torts from the Shulman et al. book with Guido Calabresi. We spent a week on Ives v. South Buffalo as Guido carefully dissected the policy judgments lurking beneath a superficially rule-bound opinion on the limits of strict liability. That was a pretty thorough introduction to recognizing the policy considerations and discretion as to law in the judicial role. But was that because Shulman presents strict liability first? Or does Shulman present strict liability first because the book is designed to encourage a conversation about these considerations? Guido told us that his teacher, Fleming James, spent a month on ives. And, of course, Guido picked a book that fit with his teaching style and with his thoroughly-developed attitudes towards the design of legal institutions to settle (or obscure) policy questions (“What is the good of all mankind?” I can still hear him say). That pervaded the class; he picked a book that supported his ability to teach that way; its sequence of topics was only one part of a coherent and much larger Torts course.

    So I’m still trying to think how one factors out the effects of a Shulman or a Calabresi in a study like this. One variable susceptible to actual control might be to find professors who teach Torts out of order with respect to their casebook. Another might be to expand the study group so that the influence of any one personality is diminished. I’m just not sure the study is there yet.

  5. JM Sanderson says:

    Guido is, once again, using Shulman and starting with Ives – I’m in his section.

    My guess, though, would be that this survey is going to be distorted massively by the choice of law schools/sections surveyed. Put bluntly, you could start by teaching YLS students the contractual relations tort or alienation of affections, and still 98% of us would still view the judge’s role in a highly realist manner rather than formalistic rule application. Correlation isn’t causation; maybe starting with strict liability is more common in the most theoretical and most policy-oriented law schools anyway.

    And there’s a good reason why that’s the case. Starting with Ives and strict liability is saying: “Why do we have this regime called torts?” Perhaps assuming students already have some concept of what negligence is, it’s asking right from the start why we use this largely fault-based regime to govern most accidents rather than a strict scheme (like Ives) or some kind of social insurance. If you’re in a theory-minded law school, of course the professors are going to be asking you why the law should take a particular route, rather than another.

    By contrast, if you’re in an intensely practical law school, of course you’re going to start with something like negligence because it’s a massive part of legal work. And of course you’re going to think in terms of rules – if a law school is just trying to prepare students for the realities of being a torts lawyer at trial, it isn’t going to focus on the social or economic reasons why one approach will be preferable – it’s going to focus on what rules students are going to need to know when they’re experiencing this in practice.

    I’m writing this in a rush, so I apologize if this comment is poorly written and reads like a stream of consciousness. But it strikes me as highly likely that places that start with strict liability, and especially Ives, are deliberately trying to get students to think of the social context, etc., whereas those starting with negligence are far more likely to be concentrating on practical reality. The choice of where to begin seems to be a consequence of a professor’s aims (teach critical analysis of the whole torts regime vs. teach how to be a good torts trial lawyer); the way students think about judging would thus seem to be based on the perspective the professor decided to inculcate (and choice of book/order will be based in part upon that decision).