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Situationist Torts


Jon D. Hanson


Harvard Law School

Michael McCann


University of New Hampshire School of Law; Sports Illustrated and SI.com; Mississippi College School of Law

2008

Loyola of Los Angeles Law Review, Vol. 41, 2008
Harvard Public Law Working Paper No. 08-35

Abstract:     
This Article calls for a situationist approach to teaching law, particularly tort law.

This new approach would begin by rejecting the dominant, common-sense account of human behavior (sometimes called dispositionism) and replacing it with the more accurate account being revealed by the social sciences, such as social psychology, social cognition, cognitive neuroscience, and other mind sciences.

At its core, situationism is occupied with identifying and bridging the gap between what actually moves us, on one hand, and what we imagine moves us, on the other. Recognizing that gap is critical for understanding what roles tort law (among other areas of law) serves. Beyond that, a situationist approach helps to make clear the subconscious tendencies and otherwise unappreciated external forces that have shaped tort law and tort reforms. A situationist perspective on tort law, this Article argues, also has significant implications for how tort law is taught.

The Langdellian model of teaching, which has monopolized the law school classroom since the late 19th century, has been the brunt of increasing criticism over the past several decades. Most critics emphasize that the casebook method forces the round complexities of law, lawmaking, and human behavior into the square holes of antiquated legal categories and idiosyncratic appellate decisions. A number of leading law schools are now dramatically reshaping their curricula to address such concerns.

Simultaneously, legal theory is in the midst of its own revolution as legal scholars are beginning to reject the hard-core dispositionism at the foundation of law and to incorporate, or at least acknowledge, emerging insights from the mind sciences.

The curricular and theoretical renovations underway represent what we would call a turn toward the situationist. Those trends have created a hospitable climate for the emergence of a more robust situationist approach to law and law teaching. This Article describes not only those trends and their implications, but also some specifics regarding how situationist torts would be taught and what a situationist torts casebook would look like.

Number of Pages in PDF File: 110

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Date posted: July 1, 2008 ; Last revised: July 21, 2013

Suggested Citation

Hanson, Jon D. and McCann, Michael, Situationist Torts (2008). Loyola of Los Angeles Law Review, Vol. 41, 2008; Harvard Public Law Working Paper No. 08-35. Available at SSRN: http://ssrn.com/abstract=1154164

Contact Information

Jon D. Hanson
Harvard Law School ( email )
1563 Massachusetts
Griswold 403
Cambridge, MA 02138
United States
607-496-5207 (Phone)
HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=25
Michael A. McCann (Contact Author)
University of New Hampshire School of Law ( email )
Franklin Pierce Center for Intellectual Property
2 White Street
Concord, NH 03301
617.875.6132 (Phone)
HOME PAGE: http://law.unh.edu/about/personnel/faculty/michael-mccann
Sports Illustrated and SI.com
1271 Avenue of the Americas
New York, NY 10020
United States
HOME PAGE: http://sportsillustrated.cnn.com/writers/michael_mccann/archive/index.html
Mississippi College School of Law
151 East Griffith Street
Jackson, MS 39157
HOME PAGE: http://law.mc.edu/faculty/profile_mccann.htm
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