Center for Gender & Sexuality Law
Negligent, intentional, and strict liability torts. From a canonical standpoint, whatever else one might teach, it is not a first-year torts course if these three concepts are not covered. Torts has a canon, even a Restatement. Yet a canon evolves only after some criteria of value has been established such that privileged texts can be identified according to some authoritative standard. In other words, a canon is the result of a process by which a rule of recognition identifies authoritative texts.
At what point can we say that torts became a field and an intact legal subject, the canon of which could be taught in law schools? Most often, casebooks reveal an existing canon, as is the case with most contemporary torts texts. However, during a period of field formation or reformation, casebooks can play a critical role in the evolution of a field, the creation of a disciplinary rule of recognition, and the concomitant development of a canon. Two new casebooks, William Rubenstein's Cases and Materials on Sexual Orientation and the Law and William Eskridge and Nan Hunter's Sexuality, Gender, and the Law, enter legal education at a moment when they can have a profound effect upon the formation of a law school subject, a legal field, and a canon. What is, or should be considered, the canon of the field alternatively termed gay/lesbian, sexual orientation, sexuality, or queer law? What should we teach? If a canon is "'a historical, political, and social product, something that is fashioned by men and women in the name of certain interests, partisan concerns, and social and political agenda,'" then these books reflect two competing social and political agendas.
Katherine M. Franke,
Homosexuals, Torts, and Dangerous Things,
Yale L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/496