Tort Law in the Age of Statutes

• Author: Mark A. Geistfeld
• Position: Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law
• Pages: 957-1020

Tort Law in the Age of Statutes Mark A. Geistfeld  ABSTRACT: The common law of torts is widely considered to be in conflict with the modern regulatory state. Tort law interacts with regulations and their enabling statutes in different ways that are fully addressed by the doctrines of negligence per se, the regulatory compliance defense, and statutory preemption. According to a substantial body of scholarship, these three statutorily related doctrines are a muddle, lacking any coherent theory that adequately accounts for the competing institutional concerns of the federal regulatory and state tort systems. The problem resides in a mistaken focus on statutory purpose. Due to the supremacy of legislative law, a statutory purpose to modify tort law would seem to fully determine the relation between the common law of torts and the regulatory state. This conclusion is mistaken, however, explaining why there has been so much confusion and controversy about the matter. Systematic analysis across the doctrines of negligence per se, the regulatory compliance defense, and implied statutory preemption shows that they are instead unified by a single underlying principle: When a statute or administrative regulation is based on a policy decision that is relevant to the resolution of a tort claim, courts will defer to the non-binding legislative policy determination as a matter of common-law discretion. This immanent principle of common-law deference gives much-needed structure to the three statutorily related doctrines, filling the analytic gap created by the overly narrow inquiry into statutory purpose. The legislative intent to modify tort law certainly matters, but the principle of deference provides the primary means by which courts integrate health and safety legislation into the common law of torts, eliminating the purported conflict between tort law and the modern regulatory state.  Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law. Copyright 2014 Mark A. Geistfeld. Special thanks to the New York City Torts Group, and to Richard Epstein, Fernando Gomez, Steve Landsman, Peter Schuck, Tony Sebok, and Cathy Sharkey for their helpful comments. This Article more rigorously develops an argument I first started to sketch out in MARK A. GEISTFELD, TORT LAW: THE ESSENTIALS 221–28 (2008). This project was supported by the Filomen D’Agostino and Max E. Greenberg Research Fund of the New York University School of Law. 958 IOWA LAW REVIEW [Vol. 99:957 I. THE PRINCIPLE OF COMMON-LAW DEFERENCE ..................................... 963 II. DEFERENCE AND STATUTORY VIOLATIONS AS PROOF OF NEGLIGENCE PER SE .............................................................................. 967 A. T HE P UZZLE OF N EGLIGENCE P ER S E ................................................. 968 1. Cases in Which the Black-Letter Rule Is Satisfied but the Plaintiff Loses ......................................................................... 969 2. Cases in Which the Black-Letter Rule Is Not Satisfied but the Plaintiff Prevails ......................................................... 971 B. N EGLIGENCE P ER S E AND S TATUTORY P URPOSE ................................. 974 C. M APPING D EFERENCE INTO THE E LEMENTS OF A N EGLIGENCE C LAIM ............................................................................................. 976 1. Statutes as the Source of Newly Recognized Common-Law Duties............................................................................... 977 2. Statutes that Are Incorporated into Pre-Existing Common-Law Duties .............................................................. 984 D. D EFERENCE AND THE B LACK -L ETTER R ULE OF N EGLIGENCE P ER S E .... 988 E. D EFERENCE AND THE F ORM OF J UDICIAL D ECISIONMAKING ................. 989 III. DEFERENCE AND REGULATORY COMPLIANCE AS A DEFENSE TO THE TORT CLAIM ........................................................................................... 991 A. S TATUTES OR R EGULATIONS E STABLISHING A M INIMUM S TANDARD OF S AFETY ........................................................................................ 993 B. S TATUTES OR R EGULATIONS THAT F ULLY R ESOLVE THE S AFETY Q UESTION ........................................................................................ 996 C. C HARACTERIZING THE R EGULATORY C OMPLIANCE D EFENSE ............ 1001 D. F ROM THE R EGULATORY C OMPLIANCE D EFENSE TO I MPLIED P REEMPTION .................................................................................. 1003 IV. DEFERENCE AND THE STATUTORY PREEMPTION OF TORT CLAIMS ...... 1004 A. T HE C ONGRUENCE B ETWEEN I MPLIED P REEMPTION AND THE R EGULATORY C OMPLIANCE D EFENSE ............................................... 1008 B. R EFRAMING I MPLIED P REEMPTION IN T ERMS OF THE R EGULATORY C OMPLIANCE D EFENSE .................................................................... 1010 C. I MPLICATIONS OF THE R EGULATORY C OMPLIANCE D EFENSE FOR I MPLIED P REEMPTION .................................................................... 1014 D. L OCATING THE R EGULATORY C OMPLIANCE D EFENSE W ITHIN P REEMPTION A NALYSIS ................................................................... 1017 CONCLUSION ....................................................................................... 1019 2014] TORT LAW IN THE AGE OF STATUTES 959 During the past century, the legal system moved into the “age of statutes,” 1 creating an apparent conflict between the modern regulatory state and the common law of torts. Although the common law originated in medieval times, the modern tort system did not fully emerge until the writ system was abolished in the latter half of the nineteenth century. Due to the limited number of regulatory alternatives at that time, “courts had become the American surrogate for a more fully developed administrative apparatus.” 2 With the passage of time, the administrative state fully developed, but courts seemed to be unwilling to cede their historic regulatory authority. Instead of relying on health and safety regulations to determine the safety decisions required by tort law, courts routinely obligated defendants to comply with the judicially defined tort standard of reasonable care. 3 The apparent failure of courts to defer to administrative regulations became increasingly worrisome as markets continued to expand throughout the twentieth century. The tort system’s reliance on case-by-case adjudication is well suited for isolated instances of wrongdoing, like occasional collisions at railroad crossings, but tort cases in an increasingly interdependent economy often involve complex decisions in mass markets, like those for determining the optimal amount of safety for product designs or warnings. Products sold in national markets are proper subjects for uniform regulations promulgated by experts on the matter—federal administrative agencies tasked with that particular responsibility. By the final decades of the twentieth century, the evident failure of tort law to defer adequately to regulatory law had become a prominent concern, yielding tort-reform proposals to rein in “a judicial regulatory system that currently runs quite wild.” 4 The apparent conflict between the tort and regulatory systems now frames a body of scholarship that “increasingly cast the two less as complementary regimes than as institutional rivals.” 5 A closer look at the statutorily related tort doctrines further reveals an unsettled relation between the common law of torts and statutes. The “age of statutes” was first evoked by Guido Calabresi to describe the evolutionary change in which “we have gone from a legal system dominated by the common law, divined by courts, to one in which statutes, enacted by 1. See generally GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982). 2. STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877–1920, at 28 (1982). 3. See infra Part III (discussing the rule that regulatory compliance is not ordinarily a complete defense to a tort claim). 4. Peter Huber, Safety and the Second Best: The Hazards of Public Risk Management in the Courts , 85 COLUM. L. REV. 277, 335 (1985) (using this characterization to justify reforming the regulatory compliance defense). 5. Richard A. Nagareda, FDA Preemption: When Tort Law Meets the Administrative State , 1 J. TORT L., Dec. 2006, at 3, available at http://www.degruyter.com/view/j/jtl. 960 IOWA LAW REVIEW [Vol. 99:957 legislatures, have become the primary source of law.” 6 After describing this well-known development, Calabresi then made the more provocative claim that this “change itself and its effect on our whole legal-political system have not been systematically treated.” 7 Regardless of whether this claim continues to be true as a general matter, it accurately describes tort law. There has been no systematic analysis of the relation between the common law of torts and statutory law, leaving open the question of whether tort law adequately accommodates the modern regulatory state. To be sure, there is now a considerable, quickly growing body of scholarship analyzing the issue of whether a federal statute impliedly preempts state tort law. 8 Scholars have also addressed the issues of whether a statutory violation establishes negligence per se, 9 or whether compliance with a safety statute or regulation constitutes a complete defense to tort liability. 10 Nevertheless, there has been no analysis of how these doctrines of implied preemption, negligence per se, and the regulatory compliance defense each relate to one another; that is, there has been no systematic analysis of how the common law of torts interacts with statutes. 11 Symptomatic of this analytical gap, each of these doctrines is controversial. In a case of negligence per se, the statute itself does not create a cause of action or otherwise directly modify the common-law...