The Common Law
So far, we have had three classes focusing on the common law. I have a touch of experience in the subject because I am involved with common law environmental cases at work. Because I am familiar with the subject matter, I was the primary instructor for this unit.
The first day of common law, we explored the Roth case. In Roth v. Cabot Oil, a couple sued the oil giant for polluting their groundwater by fracking. The case takes place in the fracking mecca; Pennsylvania. Jared took the students through the story of the case, parsing out the important facts. The students grasped the salient points easily, and were eager to get to the application of the law. That is where I stepped in.
We went through the elements of intentional private nuisance. I analogized “cause of action” with “legal formula” to simplify that a claim is just a + b + c = liability. If liability, then remedies. That is the most basic premise of common law litigation. Obviously, it gets more nuanced the further you get into it, but the formula analogy is a good start, especially because our students are primarily science majors. For each element of intentional private nuisance, I asked the class to call out supporting facts. Once we had the support, I asked the class to argue against each point to demonstrate factual defenses. Once we got through each element by repeating that process, we decided whether or not we could establish liability. Then, we discussed what we would want if we were the plaintiffs.
The students listed off several things- money, remediation of the water, stopping the fracking, etc. With what we would want in mind, we discussed the remedies available at law; compensatory damages, punitive damages, and injunctive relief. I was shocked at how interested the students were in the calculations of damages. We discussed the money matters for fifteen minutes. Based on this discussion, I went home to research different methods of calculating damages for environmental harms to share with the class.
If I taught the class again, I would give them an exercise for them to do in small groups based on damages evaluation. In a scenario, a company would be found liable for an intentional tort, and I would list out the harms of the Defendant’s conduct.I would give them guidelines on how to value each harm: either the cost of fixing it to restore it to its original state or an associated monetary valuation. I would ask them to discuss amongst themselves how they would calculate damages owed to the plaintiff, or if they would award injunctive relief if money wouldn’t be an adequate remedy. There might even be an exercise like this out there online already that could be adapted to the class.
On a pedagogy note, we decided to implement the “parking lot” method to put aside questions that we will cover later on. We also decided to implement more small group activities. Both were fruitful in the next few classes.
The second day of common law was a rapid-fire exploration of different causes of action, all using the facts of the Roth case. I wrote the elements of negligence on the board and we went through it with the same process described above. Then we applied what we learned of negligence to negligent public nuisance. I made one more claim for trespass with the class before we split them up to try it on their own with strict liability for abnormally dangerous activities and public nuisance. I visited each group to see how their analysis was going. I was extremely pleased with what they had to say! The students were so good at pointing out the issues of application, and they were going back and forth with each other on some of the finer points. We had just enough time for them to report what they concluded as a group before class ended.
The third day of common law was probably my favorite. I introduced them to products liability as a way to stymy the flow of harmful pollutants. I based the class around recent cases in Washington state against Monsanto for the production and dissemination of PCB chemicals that were used in the construction of schools. Groups of teachers and students at Sky Valley Education Center sued on a product liability theory for brain damage caused by the PCBs in the building. The case was tried, judgment was awarded to plaintiffs, appealed by Defendant on matters of law, and is currently up for review in the Washington Supreme Court. With all the procedural history, we were able to explore the court systems and discuss the damages awarded by judgment, circling back to topics that were in the parking lot like punitive damages and misrepresentation.
The students read parts of the respondent’s appellate brief to prepare for the class. I walked them through the story as described in the brief and added in some surrounding details and context that were not included. Monsanto's conduct concerning PCBs was particularly egregious, and the framing of the respondent’s brief was particularly well done, so the students were outraged on behalf of the teachers. The students broke into small groups to analyze strict liability design defects just as they did for other causes of action in the previous class. They reported back, and they did an excellent job pinpointing the contentious issues, and the factual arguments for the plaintiffs and defendant. Next, we went through strict liability failure to warn as a class. There were some specific points I wanted to cover so I needed a more prominent role in guiding the discussion that small group would not allow. We discussed wider policy arguments on the duty to warn and when that duty arises. As I hoped, this invited some spirited debate on who was owed the warning. Once we finished, I quickly went through some of the issues Monsanto argued on appeal, the appellate decision to reverse and remand the jury decision, and the Washington Supreme Court’s imminent hearing of oral arguments on the issues in the next couple of weeks. And with that, I filled our time.
The students' reactions were amazing. They were so engaged the whole class, and everyone spoke in our discussion. After class, about five students stayed behind to keep talking about the case with me. I even heard a few students remark that the drama of the case was just as entertaining as a reality show. I was pleased to hear they were invested in the story because that's where I derive my passion and zealous advocacy. It really warmed my heart to see their eyes light up with fire when delivering their opinions on the case. I really appreciate when students stay behind to tell me a personal connection with the subject so that I can continue to get to know them. One wanted to talk about Erin Brockovich with me, another wanted to talk about expert witnesses and intimidation tactics by companies, another wanted to discuss misrepresentations by the defendant, and another wanted to tell me about a project they have with another class. I hope I can contribute to their lives and understanding of the legal process, and I am excited for the introduction of our first assignment next week.
