Teaching the Law School Curriculum - Institute for Law Teaching ...

Torts 375
strategy issues, public policy issues. Finally, it is always the case that there are splits of opinion on some of the issues
that break down along gender lines. Sometimes the students comment on this and sometimes I surface it.
Also, there are always some students who have no idea who Earvin Johnson is and some students who have detailed
knowledge of what he knew when and what has happened to him since then. This allows me to make the
point about the importance of not making assumptions about what is common knowledge and about the advantage
of pooled knowledge.
After the class, I post on the class web page a link to a newspaper article reporting that the lawsuit was voluntarily
dismissed at the request of the parties, with no information about a settlement. See, for example, “Magic
Settles AIDS Lawsuit,” Chicago Sun-Times, December 11, 1993, at 84.
Don’t Start with Vosburg
Kathryn Kelly, Columbus School of Law, The Catholic University of America
Some day, perhaps, there will be a 12-step program for torts professors. Each member’s statement in the 12step
program’s meetings will begin, “My name is so-and-so. I am a Vosburg-aholic.”
At the moment, I am a recovering Vosburg-aholic. I have started the Torts course with Vosburg multiple times,
and at different schools. Each time, my students never seemed to get it. Then, I took a fresh look at the case, and
I decided I was the one who wasn’t getting it.
What’s the opinion like? If I described it myself, I might be thought to have mis-described the opinion in favor
of my proposed conclusion. Instead, I’ll quote James Henderson, one of the many distinguished advocates of beginning
with Vosburg, as Vosburg v. Putney, 50 N.W. 403 (Wis. 1891), is known among aficionados.
It is fair to say that Professor Henderson believes that the attraction of Vosburg is its defects, not its virtues.
Professor Henderson describes the opinion as “terse and murky, with several examples of what could pass for circular
reasoning” (James A. Henderson, Jr., Why Vosburg Comes First, 1992 Wisc. L. Rev. 852, 859) and as “intriguing
almost to the point of being mysterious.” Id. at 861. Moreover, the procedural context is difficult; Professor
Henderson assigns a “13-page introduction to the procedural steps of the trial and appeal.” Id. at 855.
Professor Henderson concludes that “[d]iscussing the court’s reasoning in class is a torts teacher’s dream” and
that “reasonable minds cannot differ: Vosburg comes first.” Id. at 861.
Unfortunately, the same characteristics that make the case a dream to Professor Henderson make it a nightmare
to a torts student. A merely difficult opinion might simply encourage students to work harder, but starting
off students with an opinion that is “murky” and “circular,” whether in torts or elsewhere, will only demonstrate
to students the inadequacy of their own reasoning.
This has unfortunate pedagogical consequences. It teaches students that their own efforts to extract a rule from
a judicial opinion are futile. Indeed, they are likely to conclude that anyone’s attempt to analyze judicial reasoning
is a waste of time, because such reasoning is mostly circular anyway. They may even conclude that Vosburg’s
circularity and murkiness are appropriate models for their own legal memoranda.
Students whom Vosburg has caused to doubt their own ability will conclude that they must rely on professors
or on other “expert” sources. The “successful” students in a Socratic dialogue based on Vosburg will probably have
relied on commercial briefs. Other students will learn from their example.
The long-term apathy that Vosburg risks may be hidden from the professor by a short-term ego boost. Students
will be impressed that the professor was able to identify many issues that the students missed. Unfortunately,
that praise for the professor comes at the cost of sacrificing a major goal of the first-year courses, to develop
the students’ analytical skills and the confidence to tackle opinions on their own.
The true lesson of Vosburg is for professors. All law schools aspire to teach skills as well as doctrine, but research
shows that even highly regarded schools do little to improve students’ reasoning skills. David P. Bryden,
What Do Law Students Learn? A Pilot Study, 34 J. Legal Ed. 479 (1984).