Zahr K. Said • 17 Feb 2012
Incorporating Literary Methods and Texts in the Teaching of Tort Law
This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, “Excavating and Integrating Law and Humanities in the Core Curriculum,” on January 5, 2012.Tort law is frequently taught in terms of economic concepts: efficiency, capture, cost distribution, risk allocation, and so on. Alternatively, or in parallel, a philosophical perspective may wend its way into the first-year tort curriculum through discussions of distributive and corrective justice. Literature, however, is comparatively under-investigated as an arena for tort pedagogy and for first-year courses in the legal curriculum generally. Where literature tends to appear in law school, it most frequently does so in the form of stand-alone law-and-literature classes, which usually focus heavily on literature. For three years, I taught such a course at the University of Virginia School of Law. In that class, I continually tried to teach literary texts in a way that juxtaposed them with live legal issues. Still, the emphasis was, by and large, on literature, rather than on law. By contrast, in teaching a first-year tort law course at the University of Washington School of Law this year, I have explicitly used literature to aid and amplify legal analysis. The emphasis has been on law, rather than on literature. Nonetheless, literary texts and methods helped my students investigate how the law conceives of, and expresses, duties and losses among parties. My approach sought both to incorporate and to move beyond what Jane Baron has called, in characterizing aspects of first-generation law-and- literature scholarship, the “humanist” and “narrative” schools. Instead, the course drew on several diverse strands of law-and-literature methodology and it incorporated literary texts and methods into discussions of case law and legal policy to produce analysis that is deeply interdisciplinary. Content and methodology, to the extent they can be satisfactorily decoupled, informed my teaching of Torts in separate ways. First, I incorporated a central literary text that accompanied more traditional legal materials. Second, I required students to engage in close reading and I helped them theorize the act of reading itself. By emphasizing the textually mediated nature of the cases-both as a function of common law’s system of authority through analogy, and as a function of the casebook editors’ choices-I hope to have made clear to students that this is a new type of reading they are doing in law school, and that they are learning to think in new ways. In growing acculturated to legal analysis, law students are learning not just a new language, but a new awareness of how and why they read the way they do.