This article, which was prepared for the 2003 Clifford Symposium at DePaul University School of Law, examines the doctrinal foundations of Congress's decision to create an alternative compensation plan for victims of the terrorist attack on September 11, 2001. According to the statements made by the drafters of the plan, the risk of tort litigation against the airlines by victims on the ground (especially in the World Trade Center) was so large that the financial solvency of the airlines seemed imperiled. This paper examines that assumption from the perspective of duty. It looks at the law of one state - New York - and analyzes structure of the duty of a defendant to protect another against the intentional wrongdoing of a third party. The article argues that, in New York at least, doctrine developed since Strauss v. Belle Realty Co. requires judges to take into account public policy concerns quite similar to those that motivated the U.S. Congress to preempt the common law. The article concludes with a consideration of whether, from the perspective of institutional competency, the Congress or judiciary are in a better position to circumscribe duty in a way faithful to the demands of tort law.