Legal Commentary

There are many assumptions to challenge about the case method of teaching. But even if we accept that we should teach from cases, when it comes to common-law subjects, why should we limit ourselves to the opinions of state and federal courts with the occasional ancient English case thrown in?

This year, I?ve decided to look further afield for cases that, while still teaching us tort doctrine, would give us exposure to other courts and other systems of common law. So this semester I?m including one case from the Navajo Nation and one case from Canada. I see no down side to the slight detour. With ABA-accredited law schools teaching to all 50 states, we work with a generalized version of the common law anyway.

So in our study of duty of care in negligence this semester, we read Dobson v. Dobson, a case from the Supreme Court of Canada that considers whether a pregnant woman owes a duty to her unborn fetus. Having been injured in utero in a car accident, the infant sued the mother to obtain an insurance recovery to help pay for treatment of life-long disabilities. The case fired up class discussion as well as anything could have. And the court?s opinion even helpfully surveyed how American state courts have dealt with the question to boot. I?m following Dobson with a slide show I put together to provide an introduction to the Canadian courts.

For a discussion of wrongful death, we?ll be reading Benally v. Navajo Nation, an opinion that not only works through the doctrine, but also contains wonderful philosophical/jurisprudential content that, I hope, will lead to fruitful discussion about the meaning and nature of the common law itself. I plan to follow up discussion of the case with a guest lecturer, my colleague Keith Richotte, who will talk about tribal courts and law.

Not being well versed in either Navajo or Canadian law, I needed help finding suitable cases to teach, so I?m very grateful to Justice Raymond D. Austin at the University of Arizona for suggesting Benally and Jennifer L. Schulz at the University of Manitoba for suggesting Dobson.

If you would like to use Benally or Dobson in your Torts class, I can e-mail you the slide show if you?d like it, and the links to pdf versions of the cases are above. I?d appreciate it if you?d drop me a line (ejohnson@law.und.edu) and let me know if you?re using either or both ? I hope a few of you out there might find them as worthwhile as I do.