Cases and Materials on Torts

Rating:
Summary: Torts in Epstein Land
Review: Epstein consistently fails to distinguish between the law as applied by real courts and the law as Epstein would like it to be. On the rare occassion that he does acknowledge that his views are not law, he refuses to present the arguments in favor of the majority rule fairly or objectively, often characterizing a court's allegedly faulty application of a rule as a mistake, or worse. The vast majority of Epstein's views in any area of law, including the law of torts, are way out on the fringe of American jurisprudence, and he does the reader a disservice by pretending otherwise.

Rating:
Summary: Good Casebook
Review: Full Disclosure: I had Epstein as a professor (though not for torts) and like him personally. The critical review below is unfair. Epstein's book is certainly slanted towards a law and economics approach to torts, but it is hardly the ideological screed that the review makes it out to be. Epstein often presents cases taking approaches with which he would probably not agree and acknowledges when his own views differ from the majority opinion (which, as noted below, happens frequently). Especially when presenting arguments in the notes, Epstein almost always cites case law and law review articles contradicting him. It is true that the book probably does not spend enough time addressing reasoning that is not based in law and economics, but all case books have their flaws and this is the only signicant one I can find with this book. On the other side, the editing is very good, the chapters present the concepts in an intuitive order, and the notes to the cases were among the most interesting that I read in law school. Moreover, for students who are struggling to grasp the material, there is the Epstein treatise, which follows the book closely and explains the topics in a more straightforward manner (obviously at the cost of some the inherent complexity of the issues, but it makes a good supplement). Finally, as between a book that emphasizes law and economics in torts and one that emphasizes, say, corrective justice, it seems more valuable to have one that emphasizes law and econ because this is the less intuitive mode of analysis of the subject for most students. In a socratically taught class, it's likely that students will raise corrective justice issues on their own, when these can be compared with the material from the book, but it is less probable that students will fully calculate the economic ramifications of a precedential decision's effect on future actors' incentives unless they are encouraged to think this way when reading the cases. In sum, although the book would probably improve if it were not quite so heavily weighted towards law and economics, it is still a well edited, intuitively structured casebook with note material that should engage and interest students in the subject.

Rating:
Summary: Entirely too much Epstein and too little tort law
Review: I definitely agree with the reviewer that Epstein too often presents the law as he wishes it were (and that the mainstream does not wish for), rather than the way it is. This man is such a strong believer in strict liability that he argues for this view over and over and over ... to the point at which I want to sue him for IIMD!

Other problems I have with the book:

1. Many of the squibs should be included as whole cases (to make room for them, cut out some of the commentary and a lot of the other squibs -- squibs are hard to understand, as they lack context).
2. Include further reading suggestions in footnotes. 1L's just don't have time to follow up on all the treatises and law review articles mentioned, and rather than remove such valuable information, move it to a footnote (or better yet an endnote) so that assignments are more easily read. I genuinely want to understand this material, and really care about it, but the assignments in this book are incredibly tedious because of all the extra material that I have had to train myself to skip just to get through it.
3. Cite yourself just a little less often. Reading this book you just know Epstein was the worst kind of gunner. Don't get me wrong -- I am a bit of a gunner myself. And I appreciate that the book is written by an authority in the field. But it's over the top and it disrupts the flow.
4. Finally, ease up on the quotes of old English cases to make fairly simple points. It slows down the reading and doesn't add to comprehension, so why bother? Here's an example:

The point being made: Courts are hostile to any requirement of mitigation by plaintiffs in nuisance suits.

The quote used to make this point: (Wood, 1893)
A person injured by a nuisance, is not precluded from a recovery by the fact that he might, by small exertion and a small expenditure, have prevented the injury, the rule being, that as it was the defendant's duty to abstain from the creation of the nuisance, and having created it adjoining owners are not bound to guard against the consequences ensuing therefrom, when in order to do so they are required to expend time or money .... A party is not bound to expend a dollar, or to do any act to secure for himself the exercise or enjoyment of a legal right of which he is deprived by reason of the wrongful acts of another.

(And a question to legal writers: Why do you feel compelled to say the same thing three slightly different ways? Are you paid by the word? But I digress.)

Anyway, I guess I can see why Epstein made some of the choices he made, but he seems to have forgotten his audience (1Ls) who are working with heavy reading loads learning a new language and new way of thinking -- and rather than shining light on this magical and amazing field of law, he darkens it with poorly written explanations, tedious recitals of related material, and entirely too much pontificating about the state of the law. I am not asking him to dumb down the book, but rather to brighten it.

Back to studying ...

Rating:
Summary: Extraordinary Casebook
Review: Richard Epstein's Cases and Materials on Torts is easily the best casebook I used in law school. The cases are well edited, and the prose clear and tight. The notes after and before the cases are clear and thought provoking, but more importantly, let the reader know why the cases have been included in the book. While the book is heavily slanted toward a law and economics approach to tort law, I recommend this book for any professor who wants a systematic and clear approach to tort law that students will appreciate