Note: This is the webpage for a class that has ended. Information about current classes is available here.
Welcome to torts, the law of private wrongs!
This syllabus will provide an overview of the expectations for the course and the reading assignments.
Overview
Tort law defines the circumstances in which one is liable for injuries suffered by another, in situations not involving voluntarily assumed obligations. This body of law addresses competing concerns about what kinds of harms deserve compensation, how to most fairly and efficiently distribute losses from accidents, and under what conditions different rules should apply. It also requires examination of the different roles of judge and jury in a the American system of common law. This course will thoroughly examine negligence law, including its development, current doctrine, and practical applications, while offering an overview of intentional torts, strict liability, and products liability.
Course Objectives
At the end of this course you will be able to:
- Understand the basic tort doctrines and the contexts in which they apply
- Work through a legal claim formally, including each step in a prima facie case and defenses, applying existing rules to new fact patterns
- Discuss the various theoretical frameworks underlying tort law and critically evaluate existing legal rules and possible alternatives
- Understand the roles of judge and jury and the ways in which substantive tort law relies on the differences
- Appreciate the common law method and the ways that method differs from other types of lawmaking
Class Meetings
We will meet Monday, Tuesday, and Wednesday, from 10:20AM–11:40AM, in WCC Room 2012.
Note: We will not have class at our normal time on September 25th. That class will be rescheduled for Friday, September 20, 3:45-5:05.
Please mark down the change in your calendars. If there are any more changes, I will give you plenty of notice.
Classroom Policies
Our classroom is an environment in which all participants (instructor included) are free to try out ideas and to voice opinions, including some that might be offensive to others, so long as they do so in good faith and in a manner that does not demean or degrade others. The following rules and policies aim to foster such an environment. I reserve the right to penalize violations, including—albeit only in extraordinary cases and only with advanced written notice—refusing to allow the violator to sit for the final exam.
Attendance
Per HLS policy, attendance is required absent a compelling reason, such as illness or family emergency. Please make a good faith effort to notify me in advance by email if you will be missing a class for such a reason.
Class Participation
I will alternate between periods of lecturing, periods of Q&A, and class discussion. I expect you to come prepared to participate. In particular, I will expect that you have carefully read the assigned material prior to class and are prepared to respond to questions and/or offer comments to facilitate quality class discussion.
I have divided the class into three randomly assigned panels, posted in the course OneDrive and on Canvas. One of those three groups will be on call each class. When your group is on call, I may ask you a question, even if your hand is not raised. This does not mean that only people in the on-call group can speak; I encourage you to raise your hand any time you have relevant comments and questions. I also expect all students to prepare, even when you are not on call.
Quality class discussion does not mean giving the “correct” answer—in torts there are often several valid answers to questions. The key is to be prepared and to make your best effort at reasoning through an issue, putting your thoughts and arguments into words. If, for whatever reason, you feel that you cannot answer questions on a given day, you may—up to three times in the semester—ask me ahead of time not to call on you. If you have not asked ahead of time, and I do call on you, you may request help from “co-counsel” at any time, but I ask that you first give the question your sincere effort.
Recording, Posting, etc.
Per HLS policy, students may not record, stream, or capture images from classes, regardless of whether a given class has been ‘called to order’ or formally completed. However, audio recordings of classes will be made on major religious holidays or as accommodations approved by the Dean of Students office. Students are not permitted to post, distribute, or otherwise make available any recordings of class.
Our Classroom Community
Per HLS policy, a student’s in-class statement may not be recited or described in publicly accessible media in a manner that permits the student to be identified as the speaker of the statement. More generally, I ask all members of the class to strive to interact in a collegial manner. In emphasizing collegiality, I don’t mean to discourage disagreement. Rather, each class member is entitled to your respect, and to a presumption that their views are being offered in good faith—even if they are views with which you sharply disagree. By building such a community, we enable each of us to feel comfortable contributing to discussion. So if you are someone who feels difficulty speaking up, please push yourself to do so. Each of your contributions will be important and valuable building blocks for our discussion, even if they might occasionally feel clumsy in the moment. On the other end, I also ask that you also be cognizant of your speaking time. If you find that you are speaking often, please consider making space for others in the room who speak less frequently to have their turn. The most important thing is to remember that you are in this together, and that this is a collaborative process. The aim is that we engage each other directly and generously, as joint venturers in a shared educational undertaking.
Assessment
Exam
Your final grade in this course will be based on a comprehensive four-hour three-hour open-book exam, in which any in-class materials are permitted. The final examination for this course is scheduled for Friday, December 13. I will provide details on the exam format during the semester. Copies of previous Torts exams are available via a link on the HLS Registrar’s webpage, and copies of my own past exams are available here. I reserve the right to use different formats, but my past exams will give you a sense of the sort of questions that might be on your exam.
Self-Assessment
We will employ two forms of self-assessment in this course. The first is real-time assessment via in-class polling. I will periodically ask the class to work through hypotheticals and other questions. I will explain the answers at the time. If you get the answer wrong—or even if you get it right—make sure you understand why, and if not, this is a good question to discuss with your study groups or bring up in office hours.
You will also be required to complete two brief writing assignments as indicated on “Review Exercise” days. The first will be after the negligence prima facie case, and the second after we discuss products liability—about 1/2 and 3/4 of the way through the course respectively. These will be issue-spotter-style problems. You will write out answers at home and submit them before class on the indicated days. After class, I will upload my written solution, and your teaching fellows will hold evening review sessions to go over the problems.
These exercises are for your benefit. They serve as review for the exam, partly so you can shore up any substantive misunderstandings, but partly so you can practice successfully putting your knowledge on paper. It is therefore to your benefit to take them seriously, even though, we will only be checking for completion, and they will not contribute directly to your grade.
Deadlines:
Review Exercise 1: October 21
Review Exercise 2: November 20
Office Hours
My regular office hours are Mondays 1:15–2:30PM, in Areeda 133. I encourage you to come by. Feel free to come in groups with questions or sit in on a conversation already in progress. If you cannot make that time or want to have a private conversation, please email me to schedule another time. To schedule an appointment outside of regular office hours, please send an email to my assistant, Lisa Ananias (lananias@law.harvard.edu).
Your teaching fellows will also hold weekly review sessions:
Ashwin Fujii: Thursdays 1:30–2:30, WCC 3012
Jessica McHale: Wednesdays 1:30–2:30, WCC 3011
Materials
The casebook for this course will be Goldberg, Kendrick, Sebok & Zipursky, Tort Law: Responsibilities and Redress (5th ed.). I don’t care how you acquire it, whether you have a physical copy, or anything else, as long as you can do the reading assignments as they appear in the 5th edition. Some other readings will be posted in the course OneDrive, along with any other handouts. (Note: To access the OneDrive, you must use your HarvardKey/Central Account ID, not your law school email address.)
Feel free to use other study aids you find helpful, but remember that you won’t be evaluated on those other materials. Tort law is a sprawling subject; we won’t be covering everything, and you can learn everything you need to know for this course by completing the assignments and attending class. That said, I’ve heard good things about Kenneth Abraham, The Forms and Functions of Tort Law (6th ed. 2022)—which you can access online through the Law Library. Joseph W. Glannon, Examples and Explanations: The Law of Torts (5th ed. 2015) may also be helpful.
Accessibility
Harvard Law School is dedicated to facilitating equal access for students with disabilities and to cultivating a campus culture that is sensitive and responsive to the needs of students. To request an accommodation for a disability during the course, students should contact Accessibility Services in the Dean of Students Office at accessibility@law.harvard.edu or at 617‐495‐1880, or visit the office in WCC 3019. Additional information, including advice about how to register for accommodations, can be found at hls.harvard.edu/dept/dos/accessibility.
Even outside of the context of accommodations, if there’s something I can do to make your learning easier, please let me know.
Structure of the Course
- Negligence
- Duty
- Breach
- Causation
- Defenses
- Damages
- Strict Liability
- Products Liability
- Intentional Torts
Schedule & Assignments
Reading assignments are below. We may proceed more quickly or slowly than it indicates, and the readings will be periodically updated to reflect our pace. Most of the readings will be from the casebook (CB); others will be pdfs or links as indicated. Where relevant, I will indicate which notes from the CB are most important to focus on as you read. Please note, though, that you are responsible for all of the material in the assigned readings—including all opinions, dissents, concurrences, and casebook notes—and may be tested on any of it, even if it is not discussed in class.
The first two weeks of casebook readings have been posted in the OneDrive to give you time to buy the book.
| Date | Assignment (If a case is named, it includes the notes after.) | Topic | On Call |
| 9/3 (Tue) | Ferguson, Letter to a 1L on the First Day of Law School (pdf); CB 3–18 | Introduction to Torts | 1 |
| 9/4 (Wed) | CB 49–69 | Introduction to Duty | 2 |
| 9/9 (Mon) | CB 69–76; Intro from Joy Milligan, Pluralism in America (pdf) | General Duty of Care | 3 |
| 9/10 (Tue) | CB 76–94; Restatement 2d § 314A (pdf) | Affirmative Duties | 1 |
| 9/11 (Wed) | CB 94–110 | Affirmative Duties, con’t | 2 |
| 9/16 (Mon) | CB 110–128 | Premises Liability | 3 |
| 9/17 (Tue) | CB 149–155; 160–171 (skip n.4) | Ordinary Prudence | 1 |
| 9/18 (Wed) | CB 171–195; Bender, Lawyer’s Primer, 20–25 (pdf) | The Reasonable Person | 2 |
| 9/20 @ 3:45PM (Fri – MAKEUP CLASS) | 195–98; 212–216 nn. 1–7, 9–11, 14, 16; Sheeley v. Memorial Hospital and notes (pdf) | Custom & Professional Standard of Care | 3 |
| 9/23 (Mon) | NO NEW READING | catch-up day | 1 |
| 9/24 (Tue) | CB 217–231 | Cost-Benefit Balancing | 2 |
| 9/25 (Wed) | NO CLASS | PROFESSOR TRAVELING | n/a |
| 9/30 (Mon) | CB 231–242 | Res Ipsa Loquitur | 3 |
| 10/1 (Tue) | NO CLASS | PROFESSOR OUT SICK | n/a |
| 10/2 (Wed) | CB 424–439; Restatement §§ 286 & 288A (pdf) | Negligence Per Se | 1 |
| 10/7 (Mon) | CB 245–58; 273–281 (through note 8); 284–292 | But-For Cause; Loss of a Chance | 2 |
| 10/8 (Tue) | CB 292–318 | Loss of a Chance, con’t, Multiple cause | 3 |
| 10/9 (Wed) | CB 335–357 | Proximate Cause | 1 |
| 10/14 (Mon) | NO CLASS | INDIGENOUS PEOPLES’ DAY | n/a |
| 10/15 (Tue) | NO CLASS | INDIGENOUS PEOPLES’ DAY | n/a |
| 10/16 (Wed) | CB 357–382 | Superseding Cause | 2 |
| 10/21 (Mon) | CB 382–396 | Palsgraf | 3 |
| 10/22 (Tue) | CB 493–510; Wassell v. Adams and commentary (pdf) (Note: Wassell can be a hard case to read. It’s an appeal of jury finding that a woman was partially negligent for contributing to her own sexual assault. I will not be cold-calling in this class, but everyone does remain responsible for the materials.) | Comparative Fault | n/a |
| 10/23 (Wed) | Guest Speaker: Benjamin Keane, Bowerman Law Group | Tort Law in Practice | |
| 10/28 (Mon) | CB 511–534; Defunctland: The History of Action Park | Implied & Express Assumption of the Risk | 1 |
| 10/29 (Tue) | CB 575–599 | Compensatory Damages | 2 |
| 10/30 (Wed) | Chamallas & Wriggins Chapter 6 (pdf); Soffen, In One Corner of the Law, Minorities and Women Are Often Valued Less (read article, and play with the tool); CB 465–470 | Compensatory Damages con’t; Wrongful Death Acts | 3 |
| 11/4 (Mon) | CB 599–619 (nn. 1–10, 14, 18); 1114–1125 | Punitive Damages | 1 |
| 11/5 (Tue) | NO CLASS | ELECTION DAY | n/a |
| 11/6 (Wed) | CB 619–631; 644–657; 883–885 (n.1) | Vicarious Liability; Liability Insurance; Workers Compensation | 2 |
| 11/11 (Mon) | CB 869–871; 887–907 | Strict Liability: Trespass | 3 |
| 11/12 (Tue) | CB 956–975; Restatement 2d § 520 | Strict Liability: Ultrahazardous Activities | 1 |
| 11/13 (Wed) | CB 979–999 | Product Liability: Precursors, Elements | 2 |
| 11/18 (Mon) | CB 999–1024 | Manufacturing and Design Defects | 3 |
| 11/19 (Tue) | CB 1024–1035; 1070–1082 | Consumer Expectations vs. Risk Utility; Warning Defects | 1 |
| 11/20 (Wed) | CB 667–679; Alcorn v. Mitchell (pdf) | Intro to Intentional Torts, Battery | 2 |
| 11/25 (Mon) | NO NEW READING | catch-up Day | 3 |
| 11/26 (Tue) | CB 679–689; 699–700 (nn. 3–4) | Intent | 1 |
| 11/27 (Wed) | NO CLASS | THANKSGIVING BREAK | n/a |
| 12/2 (Mon) | CB 705–06 (Intro to Part B); Allen v Hannaford (pdf); Culp, Autobiography and Legal Scholarship and Teaching (excerpt; pdf); CB 712–721 | Assault; Transferred Intent | 2 |
| 12/3 (Tue) | CB 721–737 | Consent; Self-Defense | 3 |
Andrew Selbst 