The perils of theory

Notre Dame Law Review

Volumn 83, Issue 4, 2008, Pages 1567-1599

  Strauss, Peter L ^a  

^a Och Spine at New York Presbyterian Hospitals

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EID: 50949108230     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (148)

1. Oliver Wendell Holmes, Law and the Court, Speech at a Dinner of the Harvard Law School Association of New York (Feb. 15, 1913), in COLLECTED LEGAL PAPERS 295-96 (Dover Publ'ns 2007) (1920).
2. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001).
3. Id. at 1366-67.
4. Id. at 1351 (quoting James Madison, Notes on the Constitutional Convention (June 15, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 241, 245 (Max Farrand ed., 1966) [hereinafter FARRAND'S RECORDS]).
5. Id. at 1353 (quoting Journal of the Constitutional Convention (July 17, 1787), in 2 FARRAND'S RECORDS, supra note 4, at 21, 22).
6. Id. at 1354 (quoting James Madison, Notes on the Constitutional Convention (Aug. 23, 1787), in 2 FARRAND'S RECORDS, supra note 4, at 384, 389).
7. U.S. CONST. art. VI, cl. 2.
8. Id.
9. To be sure, where the Constitution uses the singular "Law," rather than the plural "Laws," its inclusion of the source of the "law" being spoken of generally shows that it is referring to legislative acts, whether of state or federal provenance. Take for example, the Ex Post Facto Clause's statement that "[n]o State shall . . . pass," U.S. CONST. art. I, § 10, cl. 1, or Article Ill's reference to "such Place or Places as the Congress may by Law have directed," id. art. Ill, § 2, cl. 3. Even the singular "Law" comprises the common law, however, in Article Ill's reference to "Cases, in Law and Equity." Id. art. III, § 2, cl. 1.
10. See, e.g., INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987).
11. U.S. CONST. art. II, §3.
12. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-67 (1954); Nader v. Bork, 366 F. Supp. 104, 108 (D.D.C. 1973).
13. As when President Jackson reportedly denied the proposition that his obligation to "take Care that the Laws be faithfully executed," U.S. CONST. art. II, § 3, extended to an objectionable-to-him Supreme Court judgment about Indian rights, see KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 25 (16th ed. 2007).
14. For example, the Court's condemnation of school segregation supported presidential use of the National Guard to effect integration in the South in the wake of Brown v. Board of Education, 347 U.S. 483 (1954). See, e.g., J. HARVIE WILKINSON III, FROM Brown to Bakke 90-91 (1979).
15. U.S. CONST. art. III, § 2, els. 1-2.
16. Note, Swift v. Tyson Exhumed, 79 YALE L.J. 284, 294-95 (1969); cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("Those who apply the rule to particular cases, must of necessity expound and interpret that rule."). If the "judicial Power of the United States" is understood as the adjudication of "Cases" and "Controversies," it is a truism to assert that courts have the capacity to perform such adjudication.
17. Clark, supra note 2, at 1334.
18. See, e.g., Bradford R. Clark, Unitary Judicial Review, 72 GEO. WASH. L. RKV. 319, 323-24 (2003).
19. See Bradford R. Clark, The Supremacy Clause as a Constraint on Federal Power, 71 GEO. WASH. L. REV. 91, 100 (2003) (emphasis in original).
20. See id. at 116-19.
21. 304 U.S. 64 (1938).
22. See id. at 78.
23. See Peter L. Strauss, Courts or Tribunals? Federal Courts and the Common Law, 53 ALA. L. REV. 891, 914 (2002).
24. See Erie, 304 U.S. at 69-70.
25. Id. at 78 (emphasis added).
26. Ch. 196, § 8, 27 Stat. 531, 532 (repealed 1994).
27. Ch. 149, 35 Stat. 65 (1908) (codified as amended at 45 U.S.C. §§ 51-60 (2000)).
28. See, e.g., Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U.S. 1, 11-13 (1907) (holding that Pennsylvania courts were required to administer state common law in a manner consistent with section 8 of the Federal Railway Safety Appliances Act of 1893).
29. 337 U.S. 163 (1949); cf. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543-44 (1994) (treating the question of FELA liability as an issue of the federal common law of negligence); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 SUP. CT. REV. 429, 432-35 (offering a summary and analysis of the Supreme Court's decision in Gottshall).
30. Urie, 337 U.S. at 174 (emphases added) (citations omitted) (quoting Urie v. Thompson, 176 S.W.2d 471, 474 (Mo. 1943)); see also Bailey v. Cent. Vt. Ry., Inc., 319 U.S. 350, 352 (1943) (holding the same); Chesapeake & Ohio Ry. Co., v. Kuhn, 284 U.S. 44, 46-47 (1931) (same); St. Louis, Iron Mountain & S. Ry. Co. v. McWhirter, 229 U.S. 265, 277 (1913) (same); Second Employers' Liab. Cases, 223 U.S. 1, 54-55, 57-58 (1912) (same); Schlemmer, 205 U.S. at 11-13 (same).
31. See United States v. County of Allegheny, 322 U.S. 174, 183 (1944); Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (1943); Nicholas Parrillo, "The Government at the Mercy of Its Contractors ": How the New Deal Lawyers Reshaped the Common Law to Challenge the Defense Industry in World War II, 57 HASTINGS L.J. 93, 98 n.19 (2005) (recounting earlier Supreme Court litigation in which it was unnecessary to decide the point, including United States v. Bethlehem Steel Corp., 315 U.S. 289 (1942), where the proposition appeared so obvious to the attorneys arguing the case that "neither party mentioned Erie in its [Supreme Court] brief," and "[t]he contractor cited only federal and English cases").
32. Cf. Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315 (1933).
33. See EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION 55, 58 (2000).
34. 501 U.S. 868, 888-90 (1991).
35. Clark, supra note 2, at 1323.
36. 458 U.S. 50 (1982).
37. Id. at 94 (White, J., dissenting).
38. Those privileged to attend the Symposium, where an oral version of these remarks was delivered, heard Justice Scalia characterize Freytag as perhaps the most poorly reasoned Supreme Court decision of his tenure.
39. See Freytag, 501 U.S. at 873.
40. U.S. CONST. art. II, § 2, cl. 2.
41. See Freytag, 501 U.S. at 880-82.
42. PETER L. STRAUSS, TODD D. RAKOFF & CYNTHIA R. FARINA, ADMINISTRATIVE LAW: CASES AND COMMENTS 149-50 (10th ed. 2003) (citations omitted) (quoting Freytag, 501 U.S. at 883-84).
43. Freytag, 501 U.S. at 885.
44. Id. at 886.
45. Id. at 885 (citing GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 79-80 (1969)).
46. See id. at 888-92.
47. Id. at 887 n.4.
48. See supra note 45 and accompanying text.
49. Id. at 870.
50. Id. at 892 (Scalia, J., concurring) (Justices O'Connor, Kennedy, and Souter joined the opinion).
51. Id. at 915.
52. Id. at 920-21 (citation omitted).
53. In particular, Morrison v. Olson, 487 U.S. 654 (1987), which affirmed the constitutional necessity that the Independent Prosecutor be subject to a degree of control by the President (through the Attorney General) that included the possibility of dismissal "for cause," while finding it constitutionally unnecessary that such an officer serve at will, dismissible by the President for any reason at any time. Id. at 691-93. Justice Scalia rejected the proposition that a court could determine the degree of control constitutionally requisite to preserving necessary presidential authority, but not the proposition that the Independent Prosecutor served in the Executive Branch. See id. at 706-15 (Scalia, J., dissenting). In my judgment, the same proposition applies to the "independent" Federal Trade Commission; the statutory recognition that the President may dismiss a Commission "for cause," which would include insubordination, is constitutionally compelled. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 615-16 (1984) [hereinafter Strauss, Fourth Branch]. What may divide us, then, is whether Congress may constitutionally require that the President have reasons for some action he takes in overseeing the discrete elements of government Congress has created. See Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 712 (2007) [hereinafter Strauss, Decider].
54. Clark, supra note 2, at 1323.
55. See GRANT GILMORE, THE AGES OF AMERICAN LAW 19-40 (1977).
56. See e.g., Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49, 52 (1842); Priestly v. Fowler, (1837) 3 M. & W. 1, 5, 150 Eng. Rep. 1030, 1032 (Exch.).
57. Most recently in the pages of this journal. See Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 NOTRE DAME L. REV. 1149 (2006).
58. 11 U.S. (7 Cranch) 32 (1812).
59. 41 U.S. (16 Pet.) 1 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
60. Act of July 14, 1798, ch. 74, 1 Stat. 596 (expired 1801).
61. See David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 STAN. L. REV. 795, 817 (1985) (book review).
62. This practice was abandoned by English courts in Shaw v. Director of Public Prosecutions, [1962] A.C. 220 (H.L.).
63. See Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 STAN. L. REV. 661, 693-714 (1985).
64. For example, the First Amendment, denying Congress legislative power to abridge the freedom of speech, see U.S. CONST. amend I; and the Ex Post Facto Clause, withholding legislative power to criminalize conduct that had already occurred, see id. art. I, § 9, cl. 3.
65. United States v. Hudson (Hudson & Goodwin), 11 U.S. (7 Cranch) 32, 33 (1812).
66. See RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 826-27 (5th ed. 2003).
67. Hudson & Goodwin, 11 U.S. (7 Cranch) at 32.
68. Id. at 34.
69. Clark, supra note 57, at 1182.
70. See id. at 1183-86.
71. 543 U.S. 14 (2004).
72. See id. at 22. The case involved contracts for the carriage of goods initially by sea from Australia to Savannah, Georgia, and then by rail to a destination in Alabama; the goods were damaged by an accident during the rail portion of the trip. Id. at 21. Explaining its decision to require application of uniform federal law to interpretation of the bill of lading-whether in federal district court or Alabama courts-Justice O'Connor wrote, likely in unselfconscious imitation of the Swift opinion, Article III's grant of admiralty jurisdiction "must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states." Id. at 28 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 451 (1994)). Suppose, now, that the initial leg of the journey, Australia to Savannah, had been by air freight, not by ship; and then on the same bill of lading the goods had traveled by truck toward Alabama, with an accident damaging them. Might not the same reasoning be applied, finding a federal question requiring uniform national outcomes in a transaction at the core of Congress' undoubted authority over commerce?
73. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 19 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
74. United States v. Coolidge, 14 U.S. (1 Wheat.) 415, 416-17 (1816) (noting the differing views, but declining to revisit Hudson & Goodwin in the absence of counsel willing to argue the case).
75. 14 U.S. (1 Wheat.) 304 (1816). This case, decided in the same term as Coolidge, concerned Supreme Court jurisdiction, not the authority of inferior federal courts, and Story's expansive view of the only general federal question jurisdiction then statutorily provided-that of the Supreme Court over the judgments of state courts on federal issues-included hints that this provision was mandatary, and raised political storms that do not appear to trouble either Professor Clark or me. Id. at 337-42.
76. See Swift, 41 U.S. (16 Pet.) at 3-14.
77. See id. at 8-9.
78. Id. at 9-14.
79. Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 28-29 (2004).
80. See Swift, 41 U.S. (16 Pet.) at 19-20.
81. 53 U.S. (12 How.) 299 (1852).
82. See, e.g., The License Cases, 46 U.S. (5 How.) 504, 572-73 (1847), overruled in part by Leisy v. Hardin, 135 U.S. 100 (1890); Mayor of N.Y. v. Miln, 36 U.S. (11 Pet.) 102, 143 (1837).
83. See Cooley, 53 U.S. (12 How.) at 311-14.
84. Id. at 319 (emphasis added).
85. See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 22-23 (2004).
86. 59 U.S. (18 How.) 517 (1856).
87. See id. at 517.
88. See id. at 519.
89. Id.
90. See id.
91. Id. at 520 (quoting Swift v. Tyson, 41 U.S. (16 Pet.) 1, 19 (1842)).
92. Id. at 521.
93. Id. at 520.
94. Id.
95. See PURCELL, supra note 33, at 54-56.
96. See The Lottawanna, 88 U.S. 558, 566 (1875); The Steamer St. Lawrence, 66 U.S. (1 Black) 522, 524-25 (1862).
97. 66 U.S. (1 Black) 522.
98. Id. at 527.
99. Id.
100. The Lottawanna, 88 U.S. at 574-75.
101. 91 U.S. 275 (1876).
102. See id. at 282.
103. Welton, 91 U.S. at 280.
104. Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299, 319 (1852).
105. As a formal matter, the Court attributed the judgment to Congress by attributing the preemption of state regulation to an implicit congressional intent that the field remain unregulated expressed through legislative inaction. See MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 71-72 (1994). This fictional intent surely could not satisfy Professor Clark's condition of positive senatorial assent (with the House and President also agreeing).
106. See Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 41-42 (1868).
107. Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 275-77 (1855), early established the essential common law character of due process reasoning, perhaps to be informed by statute but in no sense dependent upon it. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985); Arnett v. Kennedy, 416 U.S. 134, 159-60 (1974) (six Justices rejecting statutory definition as sufficient).
108. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
109. See Duncan v. Louisiana, 391 U.S. 145, 147-50 (1968).
110. Baker v. Carr, 369 U.S. 186, 208-09 (1962).
111. 347 U.S. 483 (1954).
112. Reed v. Reed, 404 U.S. 71, 74-75 (1971).
113. Skinner v. Oklahoma ex. rel. Williamson, 316 U.S. 535, 541 (1942).
114. In relation to Professor Clark's argument, it is irrelevant whether these protections against state intrusion are brought home by "due process" or "privileges and immunities"; in either case, the specification of just which protections may, and which may not, be claimed as against state authorities is accomplished by judicial decision without legislative participation-and, indeed, beyond the possibility of legislative correction other than by constitutional amendment.
115. The cases are animated to some degree by the overreading of Erie discussed above, see supra notes 69-73 and accompanying text; in the modern context, however, a second rationale-that Congress chooses its remedies carefully in the contemporary context of complex administrative schemes, so that adding a private remedy can be destructive of an intended balance-is often persuasive. Note that grounding the rationale in a constructive congressional choice, properly understood, should be taken as preclusive of state implication of a private cause of action as well as federal. Either state or federal implication of a remedy unprovided for would equally disturb what Congress had provided for. Here, then, the Supremacy Clause would operate to reinforce the conclusion that a private cause of action is not to be inferred, radier than leave to state authority an initiative denied to federal authority in the absence of Senate participation.
116. See Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U.S. 1, 11-13 (1907).
117. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 871-72 (2000) (noting that Congress had provided in one place that federal standards were to control state law, and in another that state common law remedies were to be preserved).
118. Approximately ten rules are adopted annually for each statute enacted.
119. 2 U.S.C. §§ 1501-1572 (2000).
120. See, e.g., id. § 1501.
121. 5 U.S.C. §§ 801-808 (2000 & Supp. V 2005).
122. Id. § 801.
123. U.S. CONST. art. I, § 3, cl. 1.
124. See Clark, supra note 2, at 1373-78.
125. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001).
126. See Clark, supra note 2, at 1373-74.
127. See id. at 1430-57.
128. Id. at 1431.
129. United States v. Grimaud, 220 U.S. 506, 509 (1911) (quoting Act of June 4, 1897, ch. 2, 30 Stat. 35).
130. See supra Part I.
131. HOLMES, supra note 1, at 295-96.
132. 127 S. Ct. 2705 (2007).
133. See id. at 2714-20.
134. See Consumer Goods Pricing Act of 1975, Pub. L. No. 94-145, 89 Stat. 801 (codified at 15 U.S.C. § 1 (200O)).
135. 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) ("The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.").
136. See Leegin, 127 S. Ct. at 2726-37 (Breyer, J., dissenting).
137. See generally Peter L. Strauss, Statutes That Are Not Static- The Case of the APA, 14 J. CONTEMP. LEGAL ISSUES 767, 785 (2005) (arguing that the Administrative Procedure Act of 1946 and the Freedom of Information Act of 1966 illustrate the proposition that the evolution of law subsequent to a statute's enactment is an appropriate element for consideration in interpreting it); see also Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 544 (1983) (arguing that some statutes, "plainly hand[] courts the power to create and revise a form of common law," and that in such circumstances, Congress expects that the courts will apply a statute to fact situations that Congress did not anticipate).
138. 220 U.S. 373 (1911), overruled by Leegin, 127 S. Ct. 2705.
139. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 386-87 (1951) (interpreting the Miller-Tydings Act not to be such a statute).
140. Portalis, Tronchet, Bigot-Préameneu & Maleville, Discours Préliminaire, in 1 J. LOCRÉ, LA LÉ GISLATION CIVILE, COMMERCIALE ET CRIMINELLE DE LA FRANCE 251, 255-72 (1827) We have equally avoided the dangerous ambition to desire to regulate and foresee everything. Is it not strange that those to whom a code always appears too large imperiously give the legislator the terrible task of leaving nothing to the decision of the judge? Regardless of what one does, positive laws will never be able to replace entirely the use of natural reason in the affairs of life. The needs of society are so varied, the intercourse among humans so active, their interests so multiple, and their relationships so extensive that it is impossible for the legislator to foresee everything. Even in the matters upon which he fixes his particular attention there are a host of details that escape his attention or are too disputed or too rapidly changing to become the object of a text of law. Moreover, how can one hold back the action of time? How can the course of events be opposed, or the gradual improvement of mores? How can one know and calculate in advance what only experience can reveal to us? Can foresight ever extend to those objects which thought cannot reach? A code, however complete it may appear, is no sooner promulgated than a thousand unexpected questions are presented to the judge. Because the laws, once written, remain as they were written. Man, on the contrary, never remains the same, he changes constantly; and this change, which never stops, and the effects of which are so diversely modified by circumstances, produces at every instant some new combination, some new fact, some new result. A great many things are necessarily left to be determined by custom (usage), to the discussion of informed men, to the decision (arbitrage) of the judges. The function of the law (loi) is to fix, in broad outline, the general maxims of justice (droit), to establish principles rich in suggestiveness (conséquences) , and not to descend into the details of the questions that can arise in each subject. It is for the judge and for the lawyer, embodied with the general spirit of the laws, to direct their application. ARTHUR TAYLOR VON MEHREN & JAMES RUSSELL GORDLEY, THE CIVIL LAW SYSTEM 54 (2d ed. 1977) (translating and quoting Portalis et al., supra).
141. The story of the transition, and its difficulties, is brilliantly told in JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC (2004).
142. FRANÇOIS GENY, MÉTHODE D'INTERPRÉTATION ET SOURCES EN DROIT PRIVÉ POSITIF (Jaro Mayde trans., 2d ed. 1963).
143. E.g., Jand'heur v. Les Galeries Belfortaises, Cour de Cassation [Cass. Ch. Réuns.] [Court of Cassation], Feb. 21, 1927, D. 1927,1. 97 (note Ripert), translated in VON MEHREN & GORDLEY, supra note 140, at 622; Guissez, Cousin et Oriolle v. Teffaine, Cour de Cassation [Cass. Civ.] [Court of Cassation], June 16, 1896, D. 1897, I. 433 (note Saleilles), translated in VON MEHREN & GORDLEY, supra note 140, at 608.
144. E-mail from Philip Hamburger, Professor of Law, Columbia University, to Peter L. Strauss, Professor of Law, Columbia University (Sept. 24, 2007 23:38 EST) (on file with author).
145. 377 U.S. 533 (1964).
146. As many have observed, there is an irony in the debt these developments owe to the pen of perhaps the most conservative Justice of the early twentieth century, Justice McReynolds. The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall. . . deprive any person of life, liberty, or property, without due process of law." While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts. Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923) (alteration in original) (citations omitted).
147. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 864-65 (2000) (grappling with the preemptive force of a particular safety regulation issued to execute a statute that included an express congressional preservation of state common law remedies). The question was whether a federal regulation specifying a particular timetable for the introduction of airbags as required automotive safety technology preempted a verdict under state common law that a particular automobile manufacturer had sold a defectively designed car, when it did not yet contain such a device. See id. at 865. Strikingly, the case illustrated the need for federal judgment on this issue; "[a] 11 of the Federal Circuit Courts that have considered the question . . . have found pre-emption," but "[s]everal state courts have held to the contrary." Id. at 866; see Strauss, supra note 23, at 921.
148. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) ("[T]he meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand."). 149 See Strauss, Decider, supra note 53; Strauss, Fourth Branch, supra note 53.