Tort Law in the Age of Statutes

AuthorMark A. Geistfeld
PositionSheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law
Pages957-1020
957
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 intera cts 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. Greenbe rg 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. THE PUZZLE OF NEGLIGENCE PER SE ................................................. 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. NEGLIGENCE PER SE AND STATUTORY PURPOSE ................................. 974
C. MAPPING DEFERENCE INTO THE ELEMENTS OF A NEGLIGENCE
CLAIM ............................................................................................. 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. DEFERENCE AND THE BLACK-LETTER RULE OF NEGLIGENCE PER SE .... 988
E. DEFERENCE AND THE FORM OF JUDICIAL DECISIONMAKING ................. 989
III. DEFERENCE AND REGULATORY COMPLIANCE AS A DEFENSE TO THE
TORT CLAIM ........................................................................................... 991
A. STATUTES OR REGULATIONS ESTABLISHING A MINIMUM STANDARD
OF SAFETY ........................................................................................ 993
B. STATUTES OR REGULATIONS THAT FULLY RESOLVE THE SAFETY
QUESTION ........................................................................................ 996
C. CHARACTERIZING THE REGULATORY COMPLIANCE DEFENSE ............ 1001
D. FROM THE REGULATORY COMPLIANCE DEFENSE TO IMPLIED
PREEMPTION .................................................................................. 1003
IV. DEFERENCE AND THE STATUTORY PREEMPTION OF TORT CLAIMS ...... 1004
A. THE CONGRUENCE BETWEEN IMPLIED PREEMPTION AND THE
REGULATORY COMPLIANCE DEFENSE ............................................... 1008
B. REFRAMING IMPLIED PREEMPTION IN TERMS OF THE REGULATORY
COMPLIANCE DEFENSE .................................................................... 1010
C. IMPLICATIONS OF THE REGULATORY COMPLIANCE DEFENSE FOR
IMPLIED PREEMPTION .................................................................... 1014
D. LOCATING THE REGULATORY COMPLIANCE DEFENSE WITHIN
PREEMPTION ANALYSIS ................................................................... 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 th at 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.

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