[Note: This posting is a continuation of a report on
the development of a civics unit of study.
This unit is directing students to formulate informed positions on a
governmental topic: ground rules
overseeing tort law. It is being
developed in real time. Writer wants to
identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
Comparing the “short”
history the last series of postings presented with that of foreign trade or the
opioid crisis of earlier postings, this last history is not so short. The length has to do with organizing that
history around the three tensions highlighted – strict liability vs.
negligence, misfeasance vs. nonfeasance, and factual causation vs. legal
causation.
But
a teacher might feel that to assign students to read that history might be
asking too much. This developer
agrees. In these considerations, teachers
should keep in mind the big picture: what do students need to know to be able
to evaluate the nation’s handling of tort law – especially as it relates to
federalist values? And that portion of
the history reviewing strict liability vs. negligence might be enough.
With
that in mind, he offers some other options.
One concern is that some of this history might prove to be too
abstract. For example, describing
intervening nuances in attributing negligence can be found too difficult for
many students to appreciate or understand.
What might be considered is to either assigning those portions of the
history to the more sophisticated students or omit it from the history
altogether.
A second concern, the length itself,
can be handled in various ways. One way
is: the teacher can divide the class
into three groups assigning each group one of the subsections that correspond
to the three tensions. This can be done
several days before the beginning of the unit and, if assigned that way, the
teacher can dedicate the first lesson (first class period) of the unit
reviewing a list of organizing concepts along with conducting a discussion over
the “no duty to a stranger” principle.[2]
The discussion can last about fifteen
minutes and then segue into a conceptualizing exercise that can grow out of the
discussion. So, as the discussion
progresses, the teacher can present organizing concepts: the American court system (its structural
elements), its tensions (the three tensions highlighted in the history and of
which each student has read about one of them), common law/case law, civil law,
precedent, defendant and plaintiff (the adversaries), cause vs. fault, trial
courts, appeal courts, reasonableness, and foreseeability.
During the last half of the lesson
(about twenty-five minutes), these concepts can be reviewed. By reviewing the concepts, the aim is not to
impart sophisticated definitions or instilling a working capacity in their
use. Instead, the aim is to introduce
the students to these ideas and have them begin using the ideas by reflecting
on how they relate to one another. One
tool that teachers have used for this type of lesson is a concept wheel.
A
teacher offers the student a central concept – here, that would be tort law –
and writes its symbolic representation – “tort law” – in the middle of a large
circle. The teacher suggests three or
four main sub-ideas. For example: tensions, feasance, cause and fault, and
liability standard can be used. If this
is a bit too abstract how about blame, money award, duty, and adversaries?
Students,
in their notes or on a handout (which can be already set up), as the discussion
continues, are to fill in the circle with the reviewed concepts as they see
them relate to one or more of the sub-ideas.[3] As time allows, the student toward the end of
exercise write out, to the best of their ability, a working definition for each
concept and a brief paragraph on how one of the concepts relate to their
portion of the history they were assigned to read.[4]
Lesson
two can be dedicated to review, in broad terms, the nation’s court system. This need not be overly detailed account of
the structure. A working knowledge of
the following will do. That is, knowing
that there is a federal/national court system and state court systems; and
within each level, there are trial courts, initial appeal courts, and a supreme
court and that appeals follow that progression.
The teacher might augment this by explaining generally what an appeal
is.
And,
further, that the grounds for an appeal can be for various reasons; i.e., (1) a
determination that the verdict is unreasonable or that during the trial the verdict
was not supported by the evidence; (2) the judge made a mistake in applying the
law (either statutory or constitutional law); and (3) an obvious miscarriage of
justice is being perpetrated by the verdict or the trial’s process. The textbook can be of assistance in this
lesson. Most civics textbooks review the
structure of the court systems of the nation.
Lesson
three could have students do an extended exercise – over two class periods – in
which the students analyze their history reading to review the facts that are
portrayed and prepare for an argument of how the history relates to federated
values. The teacher begins this by
reviewing the federalist moral code – a code presented earlier in this blog.[5] The lesson strives to have students prepare
and engage in an argument over the federalist nature of tort law.
Another
approach to this unit is for all students to read the whole history – over
three assignment allotments – and then follow the above suggested activities
around such a reading schedule. Whether
the reading is assigned to all students or is divided into thirds, the main
effort is to, one, have students evaluate tort law in the US in accordance to
federalist values and, two, use the opportunity to develop an argument over
some aspect of tort law.
This
latter aim can be accomplished if upon implementing the suggested approach for
the two-class period lesson outlined above, the teacher directs students to
pick one of the cases the Great Courses source identifies and is listed in an
accompany online site.[6] The site identifies a list of cases that have
served up precedents regarding the various issues related to tort law in the
US.
By
pairing students – two students pick the same case – they read the online
material, consider the history of tort law, and apply the concepts reviewed in
class to develop a pro-federalist argument (how the case advances a federalist
value) and an anti-federalist/perhaps pro-natural rights argument (how the case
challenges a federalist value and/or advances a natural rights argument). Each student takes up one of these positions.
The
arguments are written down in a logical format – perhaps utilizing Toulmin’s
model reviewed and explained in the former posting, “Toulmin’s Elements of a
Logical Argument (August 22, 2017).
The
last lesson of this unit would be dedicated for the unit’s evaluation
element. Here the students can be tested
to see their comprehension of tort law concepts, their appreciation of how tort
law challenges federalist values, and perhaps their ability to evaluate – or
short of that, synthesizing an existing critique (either in favor or in
opposition) – to the tort system of this nation or to one of its elements.
With
that evaluation lesson, the unit of study dedicated to the judiciary system
comes to an end. This unit represents how
a suggested course of study in civics can treat a national element of the
nation’s governmental/political arrangement.
[1] Edward K.
Cheng, “Torts,” Law School for Everyone
– a transcript book (Chantilly, VA: The
Teaching Company/The Great Courses, 2017), 230-445.
[2] For readers who have not read this blog’s treatment
of this principle, it refers to the fact that American common law does not
place any burden or duty on a citizen to do something positive to assist another
party. The example given to illustrate
this principle is: one does not legally
need to save a flailing baby in a puddle from drowning.
[3] One can
readily see what a concept wheel looks like by using a search engine with that
term, “concept wheel,” to find it.
[4] If the lesson takes too long, students can finish this
assignment overnight and have it collected at the beginning of the next lesson
– possibly for a quiz grade.
[5] See the posting, “A Federalist Moral View,” June 20, 2017.
[6] This site is not completed yet. Over the next week or so, it will be. Remember, this development is in real time! The site has the following URL: https://1drv.ms/w/s!AjzdhXNiY9HO3AFweEjyHhWDwY0G
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