I will speak about the ways to incorporate sexual orientation into a first-year Torts course. As one who teaches courses related to Torts and to Sexual Orientation and the Law, I have been working to combine these interests. Recently, I co-authored the new edition of Tort Law and Practice (with Dom Vetri, Lucinda Finley and Joan Vogel) in which we strived to create an inclusive Torts casebook, raising issues of class, gender, race, and sexual orientation.

I would like to discuss at least three key areas where sexual orientation issues fit most neatly into a Torts class. First is the area of intentional infliction of emotional distress where the issue is whether a slur based on sexual orientation should be actionable. There are several cases that permit discussion of this issue. The issue extends beyond sexual orientation, of course, and requires some discussion of whether the law should use an aspirational standard to determine what is "extreme and outrageous" or whether the law should simply accept that racism, sexism and homophobia are parts of the American social fabric.

The second area deals with defamation. Here courts have debated whether a false imputation of homosexuality can be defamatory. Within this debate, is the issue of whether such defamation should be seen as per se or per quod. Should judges refuse to acknowledge a false imputation of sexual orientation as reputation-harming in the eyes of "a respectable minority" or among "right-thinking individuals?" Interestingly, this issue, while similar to the issue regarding intentional infliction of emotional distress, often elicits a different response.

Finally, sexual orientation matters arise in the context of damages - of what harms we deem compensable. Here a discussion of loss of consortium, wrongful death and damages calculations in general is warranted. [I was involved in the recent successful effort in California to amend our wrongful death statute to include domestic partners.] These issue have arisen in the context of the 9/11 Compensation scheme as well.

There is a more general issue that I would like to raise in a discussion of sexual orientation too. In putting together the new edition of the casebook, a co-author and I had an on-going debate about whether including material evidencing the law's acceptance of homophobia sends a dangerous message to students. Many of the most provocative cases tend to disfavor equitable treatment of gays and lesbians, thereby exposing students to a potentially dangerous message.