The disposing power of the legislature

Columbia Law Review

Volumn 110, Issue 2, 2010, Pages 452-478

  Merrill, Thomas W ^a  

^a The Earth Institute at Columbia University   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77950503988     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (173)

1. See Henry P. Monaghan, The Supreme Court 1974 Term-Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1, 13-14 (1975) [hereinafter Monaghan, Foreword].
2. Id. at 2-3.
3. See id. at 3-10 (discussing exclusionary rule);
4. id. at 20-30
5. (same, and discussing Miranda v. Arizona, 384 U.S. 436 (1966)).
6. Id. at 10-17.
7. Id. at 18-26.
8. Id. at 27-30.
9. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80 (1803). For an explication of the background understanding that animates Marbury, see generally Philip Hamburger, Law and Judicial Duty (2008).
10. -527 U.S. 706, 733-734 (1999).
11. See, e.g., Alexander M. Bickel, The Least Dangerous Branch 106 (1962) ("The Framers knew . . . that nothing but disaster could result for government under a written constitution if it were generally accepted that the specific intent of the framers of a constitutional provision is ascertainable and is forever and specifically binding, subject only to the cumbersome process of amendment.");
12. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703, 705 (1975) ("[T]he courts do appropriately apply values not articulated in the constitutional text, and appropriately apply them in determining the constitutionality of legislation.");
13. Harry H. Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 Yale L.J. 221, 285-97 (1973) (justifying development of constitutional right of privacy in terms of judicial identification of evolving conceptions of "conventional morality").
14. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993) [hereinafter Monaghan, Protective Power].
15. Id. at 10-11.
16. See generally Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 3 (1994) [hereinafter Komesar, Imperfect Alternatives] (describing "institutional choice" as "the decision of who decides"). The greatest monument to the comparative institutional perspective, and a continuing influence on scholars and judges, is Henry M. Hart, Jr. &: Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. &: Philip P. Frickey eds., Found. Press 1994).
17. Monaghan, Protective Power, supra note 10, at 70-74.
18. See Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 730-734 (1988) (discussing Court decisions and stare decisis during New Deal);
19. see also Monaghan, Foreword, supra note 1, at 17 (explaining Court's "constitutionally inspired common law" emerging from Commerce Clause cases).
20. Cf. 1 Bruce Ackerman, We the People: Foundations 266-294 (1991) (describing process of "higher lawmaking" whereby "movement in constitutional politics" transforms initially contentious "ideological fractions" into constitutional law through Supreme Court delineation of "cogent doctrinal principles").
21. Cf. Ronald Dworkin, Law's Empire (1986) (positing model of law as integrity in which previous interpretations of Constitution are reconciled in light of "best" moral understanding of the law).
22. The Framers gave little attention to the possibility of delegation of powers by Congress, perhaps because they were more concerned with legislative aggrandizement.
23. See James O. Freedman, Review: Delegation of Power and Institutional Competence, 43 U. Chi. L. Rev. 307, 309 (1976).
24. See generally David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993) (discussing ubiquity of delegation);
25. Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1 (1983) [hereinafter Monaghan, Marbury and the Administrative State] (same).
26. See Thomas W. Merrill, Rethinking Article 1, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2101 (2004) [hereinafter Merrill, Rethinking] (elaborating on distinction between nondelegation and exclusive delegation).
27. This is revealed in Blackstone's Commentaries, which does not distinguish between common law and statutory sources of criminal liability, but melds the two together under the heading of different types of crimes.
28. See 4 William Blackstone, Commentaries *41-*254. As Thomas Green comments: "It would have been difficult to do otherwise. Statutes had intervened so often over the centuries for narrow remedial purposes that there was no separate body of common law as opposed to statutory offenses." Thomas A. Green, Introduction to 4 William Blackstone, Commentaries, at iii, xiii n.13 (Univ. Chi. Press 1979).
29. James Henretta captures the gradual evolution of colonial thought regarding the appropriate source of criminal liability by recounting three episodes occurring at different times in the colonial era.
30. See James A. Henretta, Magistrates, Common Law Lawyers, Legislators: The Three Legal Systems of British America, in 1 The Cambridge History of Law in America 555 (Michael Grossberg &: Christopher L. Tomlins eds., 2008). In 1630, magistrates in Virginia were allowed to impose the punishment of lashing for minor offences on their own say-so.
31. Id. By 1712, a Connecticut court sought the permission of the legislative assembly before drawing a distinction in the midst of a trial between murder and manslaughter.
32. Id. By 1793, the Vermont Chief Justice could declare: "No Court, in this State, ought ever to pronounce the sentence of death upon the authority of a common law precedent, without the authority of a statute."
33. Id.
34. See generally Stewart Jay, Origins of Federal Common Law: Part One, 133 U. Pa. L. Rev. 1003, 1010 (1985) (discussing controversy over federal common law crimes in late eighteenth-century America and their repudiation by the Supreme Court in early nineteenth century).
35. -11 U.S. (7 Cranch) 32, 32 (1813).
36. Id. at 34.
37. The Court declined to revisit the matter in United States v. Coolidge, 14 U.S. (1 Wheat.) 415, 416-17 (1816), notwithstanding Justice Story's vehement objections to the contrary, when the Attorney General refused to argue for the overruling of Hudson & Goodwin.
38. John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 194 n.13 (1985).
39. Id. at 195.
40. Paul H. Robinson, Fair Notice and Fair Adjudication: Two Kinds of Legality, 154 U. Pa. L. Rev. 335, 338-339 (2005).
41. Id. at 339.
42. See Jeffries, supra note 26, at 205-216 (discussing notice and rule of law principles and their relation to principle of legality).
43. See Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 Geo. LJ. 2407, 2445 (1995) (discussing paradoxical nature of environmental crimes, arising because "[c]riminal law emphasizes settled norms, while environmental law constantly changes and aspires for fundamental and dramatic change").
44. See Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 350.
45. See id. at 383-389 (noting "federal courts only sporadically apply lenity" and further exploring judicial "mechanism by which lenity has been rendered so largely inoperative").
46. See id. at 367-370 ("[L]enity is in competition with-indeed, has been largely eclipsed by-an other basic principle of federal criminal jurisprudence .... This principle holds that Congress may delegate, and courts legitimately exercise, criminal lawmaking authority.").
47. Id. at 399-406 (discussing how lenity and delegating lawmaking authority affect rule of law principles).
48. See John H. Langbein, The Origins of Public Prosecution at Common Law, 17 Am. J. Legal Hist. 313, 317-318 (1973) ("For a very long time, really into the nineteenth century, the English relied upon a predominant, although not exclusive, component of private prosecution.").
49. See Abraham S. Goldstein, Prosecution: History of the Public Prosecutor, in 3 Encyclopedia of Crime and Justice 1286, 1286-1287 (Sanford H. Kadish et al. eds., 1983) ("[B]y the time of the American Revolution, each colony had established some form of public prosecution and had organized it on a local basis.").
50. See Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 567-68 (noting Attorney General had no authority over U.S. Attorneys, who had sole authority to represent the United States in district and circuit courts). Private citizens nevertheless remained active in the early years, for example in urging grand juries to bring criminal indictments.
51. See Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 Am. U. L. Rev. 275, 292-96 (1989) ("[C]itizens in the first years under the Constitution evidently presented evidence of crimes directly to the grand jury. More commonly, individuals continued as at common law to bring evidence of crimes before magistrates and then, upon the magistrate's approval, to obtain a bench warrant for the defendant's arrest." (citation omitted)).
52. See Steven G. Calabresi &: Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale LJ. 541, 658 (1994) ("The U.S. Attorneys, created in the Judiciary Act to prosecute suits on behalf of the United States, were not put explicitly under the control of the Attorney General or the President.").
53. See Goldstein, supra note 37, at 1287-1288 (describing election of prosecutors "as an incident of the election of judges" but noting their placement "as . . . member[s] of the executive branch, along with other officials of local government").
54. Commonwealth v. Williams, 56 Mass. (2 Cush.) 582, 585 (1849) ("As a general rule . .. the conducting of the case before the court and jury is to be confined to the public prosecutor.").
55. See Goldstein, supra note 37, at 1288 (describing state court decisions limiting private prosecutions).
56. See John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 529-530 (1994) ("[T]he majority of jurisdictions allow participation only with the public prosecutor's consent and retention of control over the case.").
57. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 809 (1987).
58. See id. at 805-806 (noting potential for impropriety associated with "promises [of] financial or legal rewards for a private client" also exists for private prosecutors).
59. See Bessler, supra note 43, at 514 (arguing private prosecutors violate due process rights because they are not required to enforce concerns of "public interest").
60. See Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 797-799 (2003) (discussing federal prosecutors as "reflectors of community values" and noting their "sense of perspective and unique commitment to procedural justice").
61. William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2555 (2004).
62. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
63. -41 U.S. (16 Pet.) 1 (1842).
64. Erie, 304 U.S. at 78.
65. See supra notes 23-25 and accompanying text.
66. Erie, 304 U.S. at 78.
67. Id. at 72 (holding "construction" of Act by Swift Court was "erroneous").
68. See Henry J. Friendly, In Praise of Erie-and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383, 405 (1964) (noting "the emergence of federal decisional law in areas of national concern that is truly uniform").
69. -487 U.S. 500, 512 (1988).
70. Id. at 512-513 (outlining scope of defense).
71. Id. at 515-516 (Brennan, J., dissenting).
72. Id. at 531 (Stevens, J., dissenting).
73. See, e.g., Paul Lund, The Decline of Federal Common Law, 76 B.U. L. Rev. 895, 899 (1996) (noting recent pattern of Court "restricting the federal common law making powers of the federal courts").
74. Compare Hughes v. Washington, 389 U.S. 290, 292-93 (1967) ( applying federal common law), and
75. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 320-21 (1973
76. ) (same), with Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 372 (1977) (overruling Bonelli and applying state law).
77. Compare Illinois v. City of Milwaukee, 406 U.S. 91, 99-100 (1972) (applying federal common law),
78. with City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981) (declaring federal common law displaced by statutory law).
79. Compare United States v. Kimbell Foods, Inc., 440 U.S. 715, 726 (1979) (applying federal common law), with O'Melveny &
80. Myers v. FDIC, 512 U.S. 79, 89 (1994) (declining to apply federal common law),
81. and Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 108-09 (1991) (adopting state law as federal rule of decision).
82. Justice Scalia's freewheeling, policy-based analysis in Boyle contrasts sharply with his subsequent decision for the Court in OMelveny & Myers, where he declined to apply federal common law to determine the duty of a law firm to investigate fraud committed by a savings and loan client subsequently taken over by the FDIC 512 U.S. at 89. The latter decision stresses the illegitimacy of lawmaking by courts, and observes that the "function of weighing and appraising" multiple variables is best left for the legislature.
83. Id.
84. See generally, Guido Calabresi, A Common Law for the Age of Statutes 5 (1982) ("[S]tarting with the Progressive Era but with increasing rapidity since the New Deal, we have become a nation governed by written laws.").
85. For an overview of these actions, see Victor E. Schwartz &: Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn LJ. 541 (2006) (discussing attempts to extend public nuisance tort liability, particularly in regards to product liability).
86. The two most prominent global warming suits are Connecticut v. American Electric Power Co., 582 F.3d 309, 392-93 (2d Cir. 2009) (rejecting political question and standing objections and finding a federal common law of nuisance claim survives comprehensive federal legislation on air pollution),
87. and California v. General Motors Corp., No.C06-05755 MJJ, 2007 WL 2726871, at *16 (N.D. Cal. Sept. 17, 2007) (dismissing complaint for lack of justiciable controversy, and thus never reaching issue of whether federal common law recognizes plaintiffs global warming nuisance claim).
88. Appellate courts in Rhode Island, California, and New Jersey permitted lead paint claims to go to trial.
89. See Schwartz &: Goldberg, supra note 66, at 559-560 (outlining cases dealing with lead paint liability).
90. See Am. Elec. Power Co., 582 F.3d at 393.
91. Only one tobacco suit yielded a decision on the merits. See Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956, 973 (E.D. Tex. 1997) (rejecting public nuisance liability).
92. See Monaghan, Marbury and the Administrative State, supra note 18, at 14-20 ("[T]here has always been in our traditions particular concern with the judicial role where governmental interference with the 'private rights' of 'liberty' and 'property' was involved.").
93. See Gordon G. Young, Public Rights and the Federal Judicial Power: From Murray's Lessee Through Crowell to Schor, 35 Buff. L. Rev. 765, 849 (1986) (noting if "constitutional or state-created rights are at issue" adjudication must generally be subject to supervision of an Article III court);
94. see also Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 571 (2007) (synthesizing nineteenth-century understanding that private rights are uniquely entitled to protection by Article III courts).
95. Boumediene v. Bush, 128 S. Ct. 2229, 2235 (2008) (reaffirming that Congress can suspend writ of habeas corpus only in event of invasion or insurrection).
96. see also id. art. III, § 2, cl. 2. On judicial review where takings of property are involved,
97. see Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 247-263 (1985).
98. -5 U.S. (1 Cranch) 137 (1803).
99. Thomas W. Merrill, Marbury v. Madison as the First Great Administrative Law Decision, 37 J. Marshall L. Rev. 481, 485 (2004).
100. See generally Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 916 (1984).
101. See Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 48-53 (1985) [hereinafter Merrill, Common Law Powers] (providing overview of implied remedies).
102. -241 U.S. 33, 39-40 (1916).
103. J.I. Case Co. v. Borak, 377 U.S. 426, 432-433 (1964).
104. Cort v. Ash, 422 U.S. 66, 78 (1975).
105. -441 U.S. 677, 730 (1979) (Powell, J., dissenting).
106. Id. at 730-731
107. See, e.g., Horne v. Flores, 129 S. Ct. 2579, 2598 n.6 (2009) (noting No Child Left Behind Act "does not provide a private right of action" and thus "is enforceable only by the agency charged with administering it");
108. Stoneridge Inv. Partners v. Scientific Atlanta, 552
109. U.S. 148, 162-163 (2008) (holding Congress did not intend for private right of action for securities fraud to extend to liability for aiders and abettors).
110. See Thompson v. Thompson, 484 U.S. 174, 191-92 (1988) (Scalia, J., concurring) (arguing for shift from congressional intent test to " categorical position that federal private rights of action will not be implied" );
111. cf. Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (declining to recognize implied right of action to enforce administrative regulations issued under statute as to which the Court had previously recognized implied private right of action and observing there was " no evidence anywhere in the text to suggest that Congress intended to create a private right" of action).
112. See, e.g., Clean Water Act, 33 U.S.C. § 1365 (2006) (authorizing civil action by " any citizen" alleging point source of pollution is in violation of permit or order or alleging that Administrator has failed to perform nondiscretionary duty);
113. Clean Air Act, 42 U.S.C. § 7604 (2006) (authorizing civil action by " any person" under similar circumstances).
114. The connection is made explicit in Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 14 (1981), where the Court, after describing the citizen suit provisions in the Clean Water Act, observed that " [i]n view of these elaborate enforcement provisions it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens."
115. See generally Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345 (providing overview of internal D.C. Circuit debate).
116. -435 U.S. 519, 524 (1978).
117. Id. at 525.
118. See Jack M. Beermann &: Gary Lawson, Reprocessing Vermont Yankee, 75 Geo. Wash. L. Rev. 856, 858 (2007) (describing this as " canonical understanding" of Vermont Yankee).
119. See Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. Pa. L. Rev. 549, 562 n.95 (1985) (listing factors cited by Court in determining whether to grant deference to administrative action);
120. Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale LJ. 969, 972 (1992) (discussing pie-Chevron " multiple factors regime" for determining when deference to agency statutory interpretation is appropriate). 92. 467 U.S. 837 (1984).
121. Id. at 865-866
122. Id. at 843-844
123. See Negusie v. Holder, 129 S. Ct. 1159, 1170-76 (2009) (Stevens, J., concurring in part and dissenting in part) (arguing question before Court is a " pure question of statutory construction for the courts to decide" and therefore not one delegated to administrative agency (internal quotation marks omitted) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)));
124. Cardoza-Fonseca, 480 U.S. at 446, 448 (noting difference between " a pure question of statutory construction for the court to decide" and " the question of interpretation that arises in each case in which the agency" applies standard to set of facts).
125. See Chevron, 467 U.S. at 865 (noting that in light of " manifestly competing interests" it is reasonable to surmise that Congress " desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so" ).
126. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke LJ. 511, 518 (" [I]t seems to me desirable that . . . continuing political accountability be assured [ ] through direct political pressures upon the Executive and . . . congressional oversight." ).
127. -533 U.S. 218 (2001).
128. -546 U.S. 243 (2006).
129. -545 U.S. 967 (2005).
130. Mead, 533 U.S. at 226-227
131. Gonzales, 546 U.S. at 258.
132. Brand X, 545 U.S. at 982-983
133. The Court began to make headway in this direction in Wyeth v. Levine, where it held that agency views about the preemptive effect of federal law are generally entitled to an intermediate level of deference, rather than strong Chevron-style deference. 129 S. Ct. 1187, 1201 (2009).
134. See Sotorios Barber, The Constitution and the Delegation of Congressional Power 37 (1975) (explaining how nondelegation principle follows from principle that " neither the government nor any of its parts should change constitutional arrangement of officers and powers" );
135. Martin H. Redish, The Constitution as Political Structure 138-43 (1995) (" Unlimited legislative delegation to administrative agencies effectively undermines all three of the instrumental values that underlie the political structure dictated by the Constitution: diversification, accountability, and checking." );
136. Schoenbrod, supra note 18, at 13-18 (discussing impact of delegation on democratic process, liberty, and protection of population).
137. See, e.g., Victoria F. Nourse, Toward a New Constitutional Anatomy, 56 Stan. L. Rev. 835, 850-857 (2004) (emphasizing close constitutive relationship between the people and the legislature).
138. See, e.g., Merrill, Rethinking, supra note 19, at 2103-2109 and sources cited therein (noting that " notwithstanding the modern Court's occasional flirtation with stricter enforcement of separation-of-powers requirements," nondelegation challenges are now uniformly rejected).
139. For debate about the original understanding regarding nondelegation, compare Larry Alexander &: Saikrishna Prakash, Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297, 1298 (2003) (interpreting nondelegation principle as limiting all rulemaking power of legislators elected by the people), and
140. Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 333 (2002) (emphasizing Constitution's " discernible, textually grounded nondelegation principle" ), with
141. Eric A. Posner &: Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1723 (2002) (interpreting nondelegation principle as barring only delegation of voting or de jure legislative powers to third parties),
142. and Eric A. Posner &: Adrian Vermeule, Nondelegation: A Post-Mortem, 70 U. Chi. L. Rev. 1331, 1331-32 (2003) (same).
143. The proponents of a resurrected nondelegation doctrine argue in a variety of ways that the legislature should decide all issues that are sufficiently " important." See Lawson, supra note 108, at 360-61. In a world in which delegation is permitted, the issues that are sufficiently important to be decided by the legislature are issues about when, where, and to whom to delegate.
144. See, e.g., Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Sup. Ct. Rev. 429, 437 (depicting courts as institutions that orchestrate administrative and judicial interpretations in dynamic, integrative fashion).
145. This of course is a fundamental aspiration of the legal process school. See Hart &: Sacks, supra note 12, at 145-152 (positing allocation of authority through " reasoned elaboration" ).
146. See Komesar, Imperfect Alternatives, supra note 12, at 128 (noting greater independence of judges allows courts to resolve controversies " without some of the biases and pressures that distort other institutions" ).
147. See Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727, 758 (2008) (" [T]he courts have a strong tradition of engaging in principled interpretation." ).
148. See David Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947, 965-968 (2007) (discussing decline in number of signed opinions per term and percentage of cases in which certiorari is granted by Court).
149. Preemption of state regulation of cigarette advertising is an example of an area in which the Supreme Court's understanding of the allocation of authority remains unsteady and hence unresolved. Compare Cipollone v. Liggett Group, Inc., 505 U.S. 504, 524-25 (1992) (holding state tort law is sometimes preempted),
150. and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 550-51 (2001) (holding state regulation preempted),
151. with Altria Group, Inc. v. Good, 129 S. Ct. 538, 551 (2008) (holding state tort liability not preempted). Likewise, consider the Supreme Court's decisions on whether state tort liability for FDA-approved medical devices and drugs is preempted.
152. Compare Wyeth v. Levine, 129 S. Ct. 1187, 1203-04 (2009) (holding tort liability not preempted),
153. and Medtronic, Inc. v. Lohr, 518 U.S. 470, 486-87 (1996) (same),
154. with Riegel v. Medtronic, Inc., 128 S. Ct. 999,1007-08 (2008) (holding tort liability preempted)
155. Neil K. Komesar, Law's Limits: The Rule of Law and the Supply and Demand of Rights 165-166 (2001).
156. See Gonzales v. Oregon, 546 U.S. 243, 274-275 (2006) (invalidating federal interpretative rule that would have effectively blocked state laws permitting physicianassisted suicide).
157. See generally Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 153-168 (2006) (emphasizing limitations of courts in terms of empirical knowledge).
158. See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 58-63 (1995) (" [T]he President is unique in our constitutional system as being the only official who is accountable to a national voting electorate and no one else." );
159. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331-39 (2001) (" [P] residential leadership establishes an electoral link between the public and the bureaucracy, increasing the latter's responsiveness to the former." ).
160. See Nicholas Bagley &: Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum. L. Rev. 1260, 1312-1324 (2006) (providing history of OIRA review and recommending standard be expanded beyond narrow cost-benefit analysis).
161. Monaghan, Foreword, supra note 1, at 28-29 (citations omitted).
162. U.S. Const. art. VI, cl. 2.
163. See supra notes 1-3 &: 7 and accompanying text (introducing Type I and Type II constitutional common law).
164. -530 U.S. 428, 431-432 (2000) (refusing to follow federal statute that made confessions admissible without regard to compliance with Miranda warnings if voluntary under all circumstances).
165. By " purest manifestation" of federal common law, I mean a claim of authority to create federal rules of decision based solely on the court's inherent authority, rather than on authority grounded in an implied delegation, or the need to preempt state law to preserve the integrity of federal law. Thomas W. Merrill, The Judicial Prerogative, 12 Pace L. Rev. 327, 328-329 (1992).
166. See supra notes 105-106 and accompanying text.
167. Monaghan, Protective Power, supra note 10, at 11.
168. See supra note 12 and accompanying text.
169. See Dickerson, 530 U.S. at 438-439 (noting federal courts have no " supervisory" authority over state courts and so their authority to impose procedural requirements on states must be grounded in Constitution).
170. See Merrill, Common Law Powers, supra note 77, at 60-61 (" The principal feature distinguishing implied delegated lawmaking under the Constitution is that the delegation comes directly from the framers." ).
171. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971) (recognizing cause of action for damages for violation of plaintiff s Fourth Amendment rights by federal drug agents).
172. Merrill, Common Law Powers, supra note 77, at 66-69 (discussing delegation of lawmaking power to federal courts under different constitutional amendments).
173. -133. For a persuasive account that three-branch cooperation was necessary in establishing the institution of judicial review-a prime example of Type II constitutional common law-see Keith E. Whittington, Political Foundations of Judicial Supremacy 105-114 (2007) (discussing history of judicial review and related formation of theory surrounding the practice).