Annual Survey of American Law

Tort Law in the Shadow of Preemption

Location
Greenberg Lounge
Vanderbilt Hall
40 Washington Square South
Friday, February 27, 2009
9:00 AM – 4:00 PM

Please join us for a free-ranging discussion on various issues of tort law and agency preemption. CLE credit is available to attendees.
Schedule




9:00 am REGISTRATION AND BREAKFAST

9:30 am OPENING REMARKS

BARRY FRIEDMAN
Vice Dean, New York University School of Law

KEYNOTE ADDRESS
JUDGE GUIDO CALABRESI
Judge, United States Court of Appeals for the Second Circuit
Professor, Yale Law School

9:45 am PANEL 1: INSTITUTIONAL COMPETENCY BETWEEN THE COURTS AND AGENCIES
Courts and bureaucratic agencies are institutions with often-overlapping jurisdiction. They both, for instance, respond to concerns about unsafe food, medicines, and other products. Yet, they do so in fundamentally different ways. What are the advantages and disadvantages of each approach? Recognizing the comparative strengths and weaknesses of each institution provides a better sense of when agency preemption is normatively appealing. Finally, courts also play a role in overseeing agency decisions, which could raise particular concerns when implicating preemption.

Moderator: MARK GEISTFELD
Crystal Eastman Professor of Law, New York University School of Law

Panelists: RICHARD NAGAREDA
Professor, Vanderbilt University Law School
Director, Cecil D. Branstetter Litigation & Dispute Resolution Program
PETER SCHUCK
Simeon E. Baldwin Professor of Law, Yale Law School
BENJAMIN ZIPURSKY
Professor, Fordham University School of Law
MARK SEIDENFELD
Patricia A. Dore Professor of Administrative Law, Florida State University College of Law

11:30 am COFFEE BREAK

11:45 am PANEL 2: ISSUES OF FEDERALISM
Agency preemption moves responsibility for an issue to the federal government. This reduces the ability for state and subnational governments to experiment or to cater to local preferences. To what extent do states actually differ in these areas? And, when they do develop unique policies, is it through tort or some other mechanism?

Moderator: CATHERINE SHARKEY
Professor, New York University School of Law

Panelists: SUSAN FREDERICK
Director of the Law and Justice Committee, National Conference of State Legislators
RICK HILLS
Professor, New York University School of Law
GILLIAN METZGER
Professor, Columbia Law School
DANIEL SCHWEITZER
Supreme Court Counsel, National Association Of Attorneys General
BRIAN GALLE
Assistant Professor, Florida State University College of Law

1:15 pm LUNCH BREAK

2:30 pm PANEL 3: PREEMPTION IN THE TRENCHES
Finally, how does preemption impact the actual practice of law? Does it force lawyers to develop new strategies in counseling and litigation, change the identity of clients, and so forth? Moreover, how does preemption affect the populace, including not only potential clients—those that may have a case—but society at large? In short, what are the practical ramifications of agency preemption of torts?   

Moderator: RICHARD EPSTEIN
James Parker Hall Distinguished Service Professor of Law and Director of Law and Economics Program, University of Chicago Law School

Panelists: ELIZABETH CABRASER
Partner, Lieff Cabraser Heimann & Bernstein, LL
CATHERINE CARROLL
Counsel, WilmerHale
RICHARD DAYNARD
Professor, Northeastern University School of Law
MARK HERRMANN
Partner, Jones Day
ALLISON ZIEVE
Staff Attorney, Public Citizen Litigation Group

4:00 pm CLOSING REMARKS

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