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.