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4 Law Tchr. 1 (1996-1997)

handle is hein.journals/lawteaer4 and id is 1 raw text is: tI
i .



Institute for Law School Teaching

Fall 1996

Poetry in commotion
Katko v. Briney and the bards of first-year Torts
By Andrew J McClurg
During a classroom discussion of Katko v. Briney, the drifted to the opposite page where the Brineys stood in front
infamous Iowa spring gun case, a first-year Torts  of their tragic farmhouse: grim, unforgiving, winter parkas
student unknowingly taught me an important lesson  drawn tightly around their unattractive faces.
about the stultifying effect of the Socratic method on    Who was I to say that Marvin Katko's good looks did not
creative thinking.                                      help him win the case? The more I thought about it, the more
In Katko, Marvin Katko sued Edward and Bertha Briney  plausible it seemed. Investigation disclosed a large body of
after he broke into their                                                            research demonstrating
unoccupied farmhouse intent                                                           that physically attractive
on stealing their property and  Many of us like to think wefoster a vibrant           people enjoy many
ended up losing a portion of  classroom  learning environment, but mostly             advantages over their less
his leg to a shotgun wired to                                                         beautiful counterparts.
the bedroom door. The jury    wefool ourselves. It is easy to confuse a               Learned Hand said,

awarded Katko substantial     successful bag of
compensatory and punitive
damages. The Brineys had to
auction 80 acres of their farm to pay the judgment. The
reason Katko won? The law values life over property.
Or at least I always thought that was the reason until a
student named Fufa Fullerton set me straight. It happened
three years ago on a sweltering September afternoon during
the last dog days of Arkansas' interminable summer. Ms.
Fullerton, a mature woman who attended Smith College
back in the '50s, was three weeks into her law school career.
I called on her and asked her to explain how Marvin Katko
-a felon! - could possibly have prevailed over the poor
Brineys. She pointed resolutely to the photographs of the
parties that are included in the Prosser casebook and said in
her native Arkansas accent, I think the plaintiff won
because he's a hunk.
Straining to be heard above the laughter of her
classmates, I commented that her perspective on the case
was interesting and novel, then moved with warp speed
to another student who, mercifully, gave me the right
answer: Defending property never justifies the use of
deadly force. Good boy.
However, back in my office preparing for the next day's
class I came across Marvin Katko's photograph and studied
it closely for the first time. There he was: penetrating blue
eyes, dimpled chin, great head of hair, full lips hinting of a
seductive smile. Good Lord! Fufa Fullerton was right. Katko
was the spitting image of a young Paul Newman. My eyes


icks with vibrance.          Juries are not leaves
swayed by every breath,
but perhaps a wink from
Katko's limpid eyes was enough to do the trick.
My rumination about Katko v. Briney started me thinking
more generally about the suffocating environment the
Socratic method imposes on original expression. Episodes
like the one I experienced with Katko are not uncommon.
Many of us like to believe we foster a vibrant classroom
learning environment, but mostly we fool ourselves. It is
easy to confuse a successful bag of teaching tricks with
vibrance. True vibrance would require an open mind, risk
taking, spontaneity, inconsistency in presentation, and a
relaxed freedom to speak openly, but these ingredients are
missing from most law school classes.
On the surface, a Socratic teaching regime would appear
to be an excellent way to stimulate creative thinking. After
all, questions require answers and answers require thought.
The problem is that most of the questions law professors ask
Continued on page 2
The wisdom of Solomon .......           ..... 3-4
Electronic essay exams .....        ........... 7
The full environmental picutre ................ 9-10
Students helping students ......     .......... 1

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