Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit delivered the keynote on February 27 at the 2009 NYU Annual Survey of American Law Symposium, whose subject was "Tort Law in the Shadow of Preemption." Calabresi's address preceded three panels, with participating NYU Law faculty including Professors Richard Epstein, Mark Geistfeld, Roderick Hills Jr., and Catherine Sharkey. After an introduction by Vice Dean and Professor Barry Friedman, Calabresi laid out in his keynote a number of questions concerning preemption and tort law. Among the quandaries: Should decision making be national and centralized, or local and diffuse? Are incentives preferable to regulations? Who sets minimum standards of behavior, and how?
[Don't miss videos of keynote, panels, and related readings below.]
Many important questions such as these, Calabresi argued, are glossed over by courts who view the issues narrowly, missing the legal nuances. There are, he said, positives and negatives on both sides of these disputes; for instance, local decision making allows for the existence of opposing values within the same system, perhaps allowing the prevailing set of values to win over time. On the other hand, he added, "How often do we want to have different values, different notions of what life is worth, of what things are worth?... We often act as if different values are not important. We have not had a national tort law in the United States, and that’s interesting. In this sense the United States is much more divided in values than Europe is."
Yet in certain ways, Calabresi said, centralized dictates concerning tort law might be detrimental: "If the government, at its highest levels, sets total standards, it says who is worth living and who is worth dying, what is worth doing to save lives and what is not, and that’s a dangerous position to put the state in symbolically." The state, he said, can set minimum standards: "'You must do at least this much, but more should be done.' The state isn’t in the position of saying it’s okay to kill someone. Of course, the other side is that if you use an incentive system you come mighty close to pricing lives."
With clear directives from Congress few and far between, Calabresi said, "Shouldn’t we at least ask how... these decisions can be better made? If Congress is no good at it, believe me, courts are lousy. State courts, elected as they are in most places? Federal courts, picked as we are? God help us.... If we don’t think seriously about this, then the whole nature of the society that we have all grown up in, that we’ve taken for granted... will cease to be and will cease to be in ways which might surprise us, not just in torts but in the system as a whole."
Watch the keynote address from this event (28 min):
Watch Panel 1: Institutional Competency Between the Courts and Agencies (87 min):
Watch Panel 2: Issues of Federalism (93 min):
Watch Panel 3: Preemption in the Trenches (92 min):