Contextualizing preemption

Northwestern University Law Review

Volumn 102, Issue 2, 2008, Pages 781-809

  Rosen, Mark D ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

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EID: 49849095120     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (125)

1. For a good collection of sources, see Caleb Nelson, Preemption, 86 VA. L. REV. 225, 233 & nn.26-30 (2000).
2. See, e.g., Stephen A. Gardbaum, The Nature of Preemption,179 CORNELL L. REV. 767 (1994);
3. Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727 (2008).
4. See Gardbaum, supra note 2, at 770-73.
5. See, e.g., Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. REV. 559 (1997) (arguing that the courts should not presume preemption and rather should require an unmistakably clear intent to preempt before dismissing state tort claims).
6. See Gardbaum, supra note 2, at 770 (advocating that the categories of "conflict" and "field" preemption be abandoned and replaced by ordinary statutory interpretation such that "there should be no such thing as preemption doctrine").
7. See, e.g., Nelson, supra note 1, at 260 (arguing that the sole test under preemption should be whether state law "contradicts a rule validly established by federal law").
8. See Robert A. Schapiro, Monophonic Preemption, 102 NW. U. L. REV. 811 (2008); Merrill, supra note 2.
9. Roderick M. Hills, Jr., William T. Comfort, III Professor of Law, New York University School of Law, Comments at the Northwestern University Law Review Symposium: Ordering State-Federal Relations Through Federal Preemption Doctrine (Apr. 5, 2007) [hereinafter Hills, Comments]; see also email from Roderick Hills, Jr. to Mark D. Rosen, Professor of Law, Chicago-Kent College of Law (Oct. 16, 2007, 9:32 AM CST) (on file with the Northwestern University Law Review).
10. Courts typically must engage in similar purpose analysis even when applying statutes containing express preemption provisions because express preemption provisions typically utilize open-ended language. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 451 (2005) (holding that the Federal Insecticide, Fungicide, and Rodenticide Act's express preemption provision did not preempt state tort failure to warn claims because, inter alia, such suits "would seem to aid, rather than hinder, the functioning of [the Act]").
11. See, e.g., Michael P. Vandenbergh, The New Wal-Mart Effect: The Role of Private Contracting in Global Governance, 54 UCLA L. REV. 913 (2007) (showing that private contracts can regulate individual behavior in much the same way that public statutes do).
12. RESTATEMENT (SECOND) CONTRACTS § 178 (1981).
13. See, e.g., Hewitt v. Hewitt, 394 N.E.2d 1204 (111. 1979) (refusing to enforce a cohabitation agreement for public policy reasons). See generally Symposium, Unmarried Partners and the Legacy of Marvin v. Marvin, 76 NOTRE DAME L. REV. 1261 (2001). But see Watts v. Watts, 405 N.W.2d 303 (Wis. 1987) (holding that cohabitation contracts are not rendered unenforceable by a pro-marriage family code).
14. See T & T Mfg. Co. v. A.T. Cross Co., 449 F. Supp. 813,827 (D.R.I. 1978).
15. See id.
16. For a fuller elaboration of the details of these various preemption doctrines, see Merrill, supra note 2, at 738-41, and Nelson, supra note 1, at 226-29.
17. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
18. See Merrill, supra note 2, at 741 ("[T]he presumption against preemption is honored as much in the breach as in observance.").
19. See RESTATEMENT (SECOND) CONTRACTS § 178 (1981).
20. For a helpful discussion of the difference between unilateralist and multilateralist doctrines, see William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 HARV. J. INT'L L. 101, 107-10 (1998).
21. See T & T Mfg. Co. v. A.T. Cross Co., 449 F. Supp. 813, 827 (D.R.I. 1978).
22. U.S. CONST. art. VI, cl. 2.
23. See, e.g., Watts v. Watts, 405 N.W.2d 303, 310 (Wis. 1987) ("We find no indication, however, that the Wisconsin legislature intended the Family Code to restrict in any way a court's resolution of property or contract disputes between unmarried cohabitants.").
24. Merrill, supra note 2, at 741-42; Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 132 (2004).
25. Martin Redish advanced this view in oral comments during the Symposium. Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law, Comments at the Northwestern University Law Review Symposium: Ordering State-Federal Relations Through Federal Preemption Doctrine (Apr. 5, 2007) [hereinafter Redish, Comments]; see also email from Martin H. Redish to Mark D. Rosen, Professor of Law, Chicago-Kent College of Law (July 20, 2007, 11:46:00 CST) (on file with the Northwestern University Law Review).
26. For a discussion of Nelson's approach, see infra notes 36, 102.
27. See Schapiro, supra note 7.
28. Id. at 812. As I discuss at greater length below, Schapiro's theory is not primarily directed to the courts but instead is "directed in the first instance to nonjudicial actors," by which he means Congress and administrative agencies. Id.
29. See Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243 (2005) [hereinafter Schapiro, Interactive Federalism]; Robert A. Schapiro, Polyphonic Federalism: State Constitutions in the Federal Courts, 87 CAL. L. REV. 1409 (1999) [hereinafter Schapiro, Polyphonic Federalism].
30. See Schapiro, Interactive Federalism, supra note 28. Schapiro believes that the spatial metaphors ordinarily used to capture the relation between the federal and state governments are problematic for several reasons. First, spatial metaphors naturally give rise to the conception that federal and state power cannot readily "occupy[] the same space without displacing each other or combining into a single new, unified whole." Id. at 253. Spatial metaphors, in other words, readily lead to the sense that regulatory power over a given matter is possessed by either the federal or the state government (or instead by some newfangled hybrid of the two). Second, Schapiro resists spatial metaphors because he believes that they are handmaidens to defining state power on the basis of territorial borders, which in his view is problematic because "[t]he borders between states and between nation-states have lost much of their significance." Schapiro, supra note 7, at 813. Third, Schapiro thinks that spatial metaphors give rise to a fixed mental image that misleadingly suggests that the relation between the federal and state governments is static. Id. at 838-39. Schapiro's aural metaphor is intended to avoid these three pitfalls. First, aurality is intended to facilitate the understanding that federal and state powers can simultaneously coexist because two or more musical notes can coexist in time and sometimes even retain their distinctive "voices." Schapiro, Interactive Federalism, supra note 28, at 253-54. Second, the aural metaphor's rejection of space "seeks to move beyond this focus on territoriality." Schapiro, supra note 7, at 813. Third, Schapiro suggests that his musical metaphor facilitates intuition of the dynamic relationship between state and federal governments like musical performances unfold over time. Id. at 821. I fully sympathize with the impetus behind Schapiro's effort to pen a new metaphor; lawyers and politicians frequently share the nonaxiomatic intuition that governmental power to do X rests with one, and only one, governmental institution, and spatial metaphors probably encourage this type of thinking insofar as physics teaches us that no two physical objects can occupy the same space. I also strongly agree that territorial borders are imperfect proxies for defining the limits of regulatory powers. See Mark D. Rosen, "Hard" or "Soft" Pluralism?: Positive, Normative, and Institutional Considerations of States' Extraterritorial Powers, 51 ST. LOUIS L.J. 713 (2007) [hereinafter Rosen, Hard or Soft Pluralism}; Mark D. Rosen, Extraterritoriality and Political Heterogeneity in American Federalism, 150 U. PA. L. REV. 855 (2002) [hereinafter Rosen, Extraterritoriality]. I concur as well with Schapiro's substantive point concerning the evolutionary nature of the federal-state relationship, though I am less certain that his musical metaphor significantly facilitates recognition of this point.
31. See Mark D. Rosen, From Exclusivity to Concurrency (Jan. 2008) (unpublished manuscript, on file with author) (providing a comprehensive analysis of this structural characteristic of American constitutionalism).
32. U.S. CONST. art. II, § 2, cl. 1.
33. See Brown v. Walker, 161 U.S. 591, 601 (1896) (recognizing the power of Congress to grant amnesty and noting that the difference between pardons and amnesties is "one rather of philological interest than of legal importance" (quoting Knote v. United States, 95 U.S. 149, 152 (1877)) (internal quotation marks omitted)).
34. See U.S. CONST. art. II, § 2, cl. 2.
35. See Brace Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 801-03 (1995) (discussing the modem use of congressional-executive agreements);
36. Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573 (2007) (describing, and criticizing, the widespread modern use of sole executive agreements).
37. For a discussion of horizontal federalism, see Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1471-72 (2007).
38. See Rosen, Extraterritoriality, supra note 29, at 946-55. There are many such examples. To provide yet one more, the jury is not the sole institution with the power to engage in adjudicatory fact-finding: judges in Article I courts find facts in the very same contests where juries would have the constitutional power to find facts,
39. see Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV. 559, 575-76 (2007), and Article III judges arguably engage in factfinding of the sort performed by juries when they decide motions for summary judgment and motions to grant judgments notwithstanding the verdict.
40. See Mark D. Rosen, Revisiting Youngstown: Against the View that Jackson's Concurrence Resolves the Relation Between Congress and the Commander-in-Chief, 54 UCLA L. REV. 1703, 1718-19 (2007) [hereinafter Rosen, Revisiting Youngstown].
41. Schapiro, supra note 7, at 819. I agree with, and cannot improve upon, the elaboration of these benefits that he provides. See id. at 819-22. Schapiro appears to argue that these benefits of having multiple "nodes of governmental power" rather than only one counsels strongly, though not categorically, against concluding that federal law preempts state law. See id. at 818, 836-37. I agree that preemption analysis should take account of these considerations, but I do not think that they necessarily equate to so strong a presumption against preemption-one must also take account of the costs of polyphony, and (as described further infra text accompanying note 42) Schapiro's analysis curiously omits one of polyphony's most important drawbacks.
42. A work-in-progress of mine undertakes this very sort of analysis. See Rosen, supra note 30, at 4.
43. Local governmental law is yet another context of concurrent governmental powers insofar as state legislatures have the power to regulate the matters that fall within local governments' regulatory authority (though the converse is not true). Concurrency occurs in this context because local governments enjoy only those powers that have been delegated to them by state legislatures, and such delegations almost always are deemed to be nonexclusive.
44. See Rosen, supra note 30, at 3.
45. Schapiro, supra note 7, at 822.
46. Admittedly, one need not have recourse to a broader study of concurrency to identify this cost. Conflict figures prominently in the preemption case law, and has received the ample attention it deserves by other preemption scholars. See, e.g., Merrill, supra note 2, at 743, 752.
47. See id. at 743.
48. 539 U.S. 396 (2003).
49. E.g., Babcock v. Jackson, 191 N.E.2d 279, 284 (N.Y. 1963).
50. E.g., Bernkrant v. Fowlder, 55 Cal. 2d 588, 594-95 (1961).
51. 539 U.S. at 401.
52. Id. at 405-08.
53. Id. at 406.
54. See id. at 421.
55. These include the appropriate preemptive scope of international "obligations" entered into by the President alone without the participation of the Senate in the form of treaty-making or Congress in the form of congressional-executive agreements, see Clark, supra note 34, and the appropriate scope of state regulatory authority with respect to matters that touch upon foreign relations in the absence of clear federal statute or treaty, see, e.g., Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617 (1997). A full examination of these issues, and their bearing on the issue in Garamendi, is beyond the scope of this Article.
56. See Merrill, supra note 2, at 746-53.
57. Id. at 752.
58. See id. (discussing the benefits and costs of uniformity in terms of efficiency in national commercial markets).
59. See Schapiro, supra note 7, at 819-22. Schapiro notes that an advantage of regulatory overlap is that [s]tates and the federal government function in different settings and are subject to different pressures and concerns. . . . Each of these institutional actors gathers information in different ways, tends to focus on different kinds of costs and benefits, is subject to different constituent and interest group influences, exercises its authority in different manners, and exists within different structures of accountability. Id. at 819-21. Whereas Schapiro characterizes these as the "diversity" benefits of polyphony, see id., I think that they are better described as benefits that flow from jurisdictional redundancy. Cf. Robert M. Cover, On the Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 WM. & MARY L. REV. 639 (1981). However characterized, this sort of consideration could be readily overlooked by reducing the preemption inquiry to a choice between diversity or uniformity.
60. Merrill, supra note 2, at 747. For essentially the same reasons that follow in the text above, I question the usefulness of another "constitutional" consideration to which Merrill points, that preemption should "promote[] a proper balance of authority between the central government and the states." Id. Merrill himself "confesses] to some ambivalence" about this variable because of the "difficulty of identifying the baseline against which one is to make a judgment about whether the division of power requires rebalancing." Id. at 750.
61. Id. at 757.
62. See Nelson, supra note 1, at 225-27.
63. Limiting doctrines include the dormant commerce clause, the Privileges and Immunities Clause, and the right to travel. See generally Rosen, Hard or Soft Pluralism, supra note 29.
64. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546-47 (1985).
65. The constitutional provisions that fall under the political question doctrine all share this characteristic. See, e.g., Nixon v. United States, 506 U.S. 224, 238 (1993) (holding that the Senate, not courts, determines what is required by the instruction in Article I, Section 3, Clause 6 that the Senate shall "try" all impeachments).
66. The Senate's resolution of the recent filibuster controversy arguably so qualifies. For a description of the conflict and its resolution by the "Gang of 14," see Ryan T. Becker, Comment, The Other Nuclear Option: Adopting a Constitutional Amendment to Furnish a Lasting Solution to the Troubled Judicial Confirmation Process, 111 PENN. ST. L. REV. 981, 988-89 (2007).
67. A difficult question is what criteria and sort of reasoning Congress appropriately deploys when making a constitutional determination. There is no reason to think that a governmental institution so different from the courts necessarily would use the same criteria and reasoning as a court when it formulates a constitutional judgment, especially where (as here) the constitutional text does not directly (or even implicitly) answer the question. For a preliminary discussion of this, see Mark D. Rosen, Why the Defense of Marriage Act is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors that Determine What the Constitution Requires, 90 MINN. L. REV. 915, 932 & n.57 (2006); see also Neal Kumar Katyal, Legislative Constitutional Interpretation, 50 DUKE L.J. 1335 (2001). I shall not say anything more about this set of difficult questions in this Article.
68. Schapiro, supra note 7, at 812.
69. Id.
70. For a discussion of incommensurability, see Mark D. Rosen, Should "Un-American " Foreign Judgments Be Enforced?, 88 MINN. L. REV. 783, 820-23 (2004).
71. Although the President also is representative insofar as he is elected by the people (more or less), the administrative agencies, which determine what state law is to be displaced when Congress does not, are not.
72. Public opinion is not the sole determinant because politicians appropriately take account of their understanding of the "public interest," a factor that may not always track contemporary public sentiment.
73. Congress has ready contact with the public and the power to hold hearings. Administrative agencies do not directly assess public opinion, but also have significant factfinding powers, as Thomas Merrill notes. See Merrill, supra note 2, at 755.
74. This is generally, but not universally true, insofar as state courts sometimes create federal common law. See Anthony J. Bellia, Jr., State Courts and the Making of Federal Common Law, 153 U. PA. L. REV. 825 (2005).
75. For more on this point, see Robert L. Glicksman & Richard E. Levy, A Collective Action Perspective on Ceiling Preemption by Federal Environmental Regulation: The Case of Global Climate Change, 102 NW. U. L. REV. 579, at 591-602 (2008).
76. See Schapiro, supra note 7, at 812.
77. Merrill, supra note 2, at 754. Upon concluding that Congress can play only a limited role in rendering preemption decisions, Merrill proceeds to analyze "[t]he two most obvious candidates for undertaking such ex post inquiries," namely "courts and the agencies charged with administration of federal statutes." Id.
78. Id. (footnotes omitted).
79. Paul Brest, The Conscientious Legislator 's Guide to Constitutional Interpretation, 27 STAN. L. REV. 585 (1975) (arguing that legislators should learn how to interpret both the Constitution and opinions of courts interpreting the Constitution).
80. For more on this issue, see Catherine Sharkey, The Fraud Caveat to Agency Preemption, 102 NW. U. L. REV. 841 (2008).
81. See Metro. Life Insur. Co. v. Taylor, 481 U.S. 58, 62-64 (1987).
82. See Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547, 583 (1996) ("[In the nationwide class action context,] there will never be fifty different substantive rules, or even fifteen or ten. States tend to copy their laws from each other, and many use identical or virtually identical rules. In practice, the court will seldom have to deal with more than three of four formulations . . . .").
83. Merrill, supra note 2, at 754. Finally, although Merrill is surely correct that Congress cannot be expected to consider preemption in relation to state law that might be enacted in the future, true legislative innovations are a rarity. Most federal legislation that raises potential preemption questions (much legislation does not, such as military authorizations and tax) extends or alters the baseline tort or contract rules. This increases the likelihood that Congress will be able to anticipate the sorts of preemption issues that the legislation will raise, subject to the caveats raised above in text.
84. Merrill makes the same point. See id. at 741-42.
85. Roderick Hills cogently made this point in his oral presentation at the Symposium. Hills, Comments, supra note 8.
86. Merrill, supra note 2, at 755. Though the language quoted above appears in Merrill's discussion of administrative agencies, immediately before that Merrill writes that "[t]he two most obvious candidates for undertaking such ex post inquiries are courts and the agencies charged with administration of federal statutes." Id. at 754.
87. The need for high context-specificity seems to be directly proportional to the force of Merrill's comments regarding congressional incapacity to engage in ex ante decisionmaking to render intelligent preemption decisions.
88. Merrill, supra note 2, at 775-78.
89. Id. at 770 (quoting Skidmore v. Swift, 323 U.S. 134, 139 (1944)). For a comprehensive examination of the Skidmore standard, see Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 108 COLUM. L. REV. 1235 (2007).
90. Merrill, supra note 2, at 755.
91. Id. at 752.
92. See id. at 752-53.
93. While it is true that federal courts also are part of the federal government, courts in all likelihood are less self-interested than agencies in determining the scope of the federal agency's powers. On the other hand, it is possible that federal courts are not sufficiently mindful of state interests and that it would be preferable to craft a new institution that, in accordance with Roderick Hills's suggestion at the Symposium, see Hills, Comments, supra note 8, would ensure that state interests are properly accounted for. See infra Part II.B.3.c.
94. For an empirical examination that shows the significant deference that courts tend to grant agency decisions under Skidmore deference, see Hickman & Krueger, supra note 85, at 1250-91.
95. Cf. Merrill, supra note 2, at 753-54 (discussing Congress's institutionally appropriate role of deciding subjective policy questions).
96. More than this, constitutional law pervasively requires courts to decide among incommensurables whenever two or more constitutional principles conflict, a phenomenon that frequently occurs. See Rosen, Revisiting Youngstown, supra note 36, at 1737 & n.120. Richard Fallon has suggested other interesting respects in which incommensurability difficulties permeate constitutional law. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1191-92 (1987).
97. Cf. NEIL H. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 5 (1994) (persuasively arguing that although it frequently is the case that no institution is perfectly suited to rendering a particular decision, decisionmaking should be allocated to the institution best suited to undertaking the analysis that properly informs the decision).
98. See supra note 89 and accompanying text.
99. This is a thumbnail sketch of the history, from common law solution to the issue of child custody, to drafting and state-by-state enactment of the Uniform Child Custody Jurisdiction Act (the UCCJA), to the drafting and state-by-state enactment of the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA). See generally EUGENE F. SCOLES, PETER HAY, PATRICK J. BORCHERS & SYMEON C. CYMEONIDES, CONFLICT OF LAWS 658-65 (3d ed. 2000) (discussing common law and the first uniform act, the UCCJA); RUSSELL J. WEINTRAUB, COMMENTARY ON THE CONFLICT OF LAWS 356-58 (5th ed. 2006) (noting that "[t]he UCCJA has done much to end the tragedy of snatch-and-run relitigation of custody decrees that was all too common in pre-Act cases" and discussing the new UCCJEA). Scholars correctly note the deficiencies of the pre-uniform Act common law rules in relation to child custody, but they do not give fair credit to the role that the common law cases played in putting the drafters of the uniform laws on notice as to what considerations ought to count for purposes of the statutes.
100. See Hills, Comments, supra note 8.
101. For a discussion (and critique) of the current doctrine, see Larry Alexander & Saikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV. 1035, 1042-44 (2007).
102. See Redish, Comments, supra note 24.
103. Matthew O. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 VA. L. REV. 93, 105-06 (2005) (discussing the modern "view that judicial 'implication' of private rights of action should be viewed as an exercise in statutory construction").
104. See Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, SOSA, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 879 (2007) (correctly noting that "[w]hile there is much scholarly debate about the proper contours of federal common law, there is widespread agreement that federal common law must be grounded in a federal law source" such as a federal statute).
105. See, e.g., Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 40-46 (1985) (speaking of federal common law as being, inter alia, a form of "delegated law making" by courts).
106. My account of the legitimacy of federal courts' involvement in deciding the parameters of preemption is consistent with the contemporary scholar who has advocated one of the narrowest approaches to preemption, Caleb Nelson. Nelson has propounded an exceedingly interesting originalist argument that the Supremacy Clause authorizes the simple rule that "[c]ourts are required to disregard state law if, but only if, it contradicts a rule validly established by federal law." Nelson, supra note 1, at 260. For example, Nelson suggests that a state law purporting to prohibit all union membership appropriately would be preempted by a valid federal law that gave workers the right to join a labor union. Id. at 261. Nelson does not argue that federal courts are consequently without constitutional power to displace any additional state law, recognizing that some federal statutes "may establish (or authorize courts to establish) a subconstitutional rule of obstacle preemption." Id. at 304. Though our approaches differ in important respects (I do not advocate the unilateralist doctrine of obstacle preemption but suggest that courts embrace a different, multilateralist approach), the important point for present purposes is Nelson's recognition that federal statutes can authorize courts to develop preemption doctrines even if the Constitution itself does not.
107. See Peter Westen & Jeffrey S. Lehman, Is There Life for Erie after the Death of Diversity?, 78 MICH. L. REV. 311, 332 (1980).
108. See, e.g., Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245 (1996);
109. Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 NW. U. L. REV. 585 (2006). For one important exception, see Merrill, supra note 101, at 7 (advocating an approach to federal common law that absorbs much of what typically is spoken of as statutory interpretation).
110. Cf. JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF- GOVERNMENT 180-82 (2001) (discussing the notion of "paradigm cases," that is, the "central or most clearly established instances" of a rule or concept).
111. For a similar suggestion, see Daniel A. Farber & Brett H. McDonnell, "Is There a Text in This Class?" The Conflict Between Textualism and Antitrust, 14 J. CONTEMP. LEGAL ISSUES 619 (2005);
112. Tidmarsh & Murray, supra note 104, at 590 & n.26; Michael P. Van Alstine, Federal Common Law in an Age of Treaties, 89 CORNELL L. REV. 892, 934 (2004).
113. See Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 317, 320 (2005) (describing the Court's decisions that baseball is not covered by the antitrust laws as an example of statutory interpretation rather than federal common law); Lawrence M. Solan, Statutory Inflation and Institutional Choice, 44 WM. & MARY L. REV. 2209 (2003) (treating antitrust law as an example of statutory interpretation).
114. See Merrill, supra note 2, at 741-44; Schapiro, supra note 7, at 824-29.
115. 9 See supra text accompanying notes 72-79.
116. Merrill, supra note 2, at 758.
117. Id. at 749.
118. Id. at 758 (footnote omitted).
119. Solicitor generals from several states have made this point to the author.
120. See 28 U.S.C. § 1715(b) (2000).
121. Although a district court's ruling does not have precedential value beyond the judicial district, its persuasive effect probably justifies broader notice that would allow any interested state to participate.
122. Congress would have constitutional authority pursuant to the Sweeping Clause to ensure that preemption decisions effectuating constitutional federal questions were appropriately made, and current Tenth Amendment jurisprudence would not appear to pose any bar to a federal statute that imposed the modest requirements discussed in the text. Nevertheless, federal regulations of state procedure potentially raise complex constitutional questions that merit sustained analysis that goes beyond the scope of this Article. For an illuminating discussion of similar issues, see Anthony J. Bellia, Jr., Federal Regulation of State Court Procedures, 110 YALE L.J. 947 (2001) (analyzing federal regulations of state procedures in relation to state-created rights). Although it is well accepted that "Congress has limited authority to prescribe procedural rules that state courts must follow in enforcing federal rights of action," id. at 959, preemption presents a different, more difficult question: does Congress have the power to regulate state judicial procedures for deciding the question whether a state law claim survives potential preemption by federal law? Some federal legislation has mandated certain procedures (such as prelitigation notice requirements) for purely state law claims brought in state court, see id. at 954 (discussing the Y2K Act), but "individual Senators and the Department of Justice questioned its constitutionality" and no courts have ruled on these provisions' constitutionality. Id.
123. See FED. R. CIV. P. 24(a).
124. See 28 U.S.C. § 2403(b) (2006); see also FED. R. CIV. P. 24(c).
125. 28 U.S.C. § 2403(b).