Editor’s Introduction

Abstract

Over the dozen years of its existence, the Journal has published articles written almost exclusively by academics. For this year’s symposium, we wanted to hear the perspective of judges, those who have both the privilege and the burden of deciding torts cases. We offered the judges we contacted—state and federal, trial and appellate, inside and outside the United States—carte blanche to write about any tort-related issue they found compelling. We are delighted with the results. In his contribution, Judge Guido Calabresi, of the Second Circuit Court of Appeals, discusses multiple doctrinal observations he has made in twenty-four years on the bench. He notes the importance of torts reasoning to other areas of the law such as Title VII and Section 1983, the growing significance of federal preemption, the importance of judicial lawmaking to the parties to a tort suit, and the significance of causation to multiple areas of the law (and how that may affect our understanding of tort causation). Judge Calabresi, a former law professor and dean, also contrasts the roles of judge and scholar. A judge must be prudent and cautious; the judgemust “apply the law and abjure political biases, but also to make rulings that work. We are very reluctant to follow wonderful, new, and seemingly correct theories or views of the truth when they carry with them significant dangers.” Scholars have a different role: “As scholars, our role is to tell and write the truth as we have come to see it, fully and courageously, though the heavens fall.” Justice Peter Applegarth sits on the Supreme Court of Queensland, Australia, but also has experience as a trial judge. Justice Applegarth’s piece focuses on the idea that, in both novel and routine cases, judges often weigh policy considerations based on common sense assumptions and personal experience about how certain individuals, groups and institutions behave. For example, in assessing the consequences of creating a new category of duty of care, a new immunity from suit or even a new tort, judges are invited to predict (or speculate about) how individuals, groups, professions and institutions would behave if the law was different. In routine cases, judges also rely on assumptions and experience in deciding questions of reasonableness