INTRODUCTION: A BACKWATER IN A GROWTH INDUSTRY
As we move our way firmly into the twenty-first century, extensive regulation by all levels of government forms a permanent part of the legal landscape.' The moment two levels of government can act on the same subject matter, some rules of federal preemption are needed to resolve the conflict across the full domain of cases. Michael Greve and Jonathan Klick's recent survey of the preemption cases in the Rehnquist Court is dominated by the kinds of issues we expect to see front and center in the modern social democratic state: labor and employment leads the list with thirty-two entries; economic regulation follows in second place with seventeen; transportation and infrastructure follows with fifteen. In fourth place comes health, safety, and environmental regulation, as an undifferentiated mass of thirteen cases.2 As is typical of modern law, Greve and Klick's broad categorization lumps together all cases of personal injury and property damage as tort cases. More concretely, it does not distinguish those harms that arise out of consensual arrangements such as medical malpractice, where the state chooses to override the joint judgment of the parties, from traditional tort cases intended to protect one individual against physical harms to which there has been no antecedent consent.3 The huge expansion in modern tort law lies in the domain of consensual injuries. In this Article, I put these cases aside to concentrate exclusively on the stranger cases-here, the few modern cases that grapple with liability for common law nuisances-a topic that far antedates the rise of the welfare state.4
These common law cases are of intrinsic interest in their own right; the law of nuisance contains hidden complexities and intellectual sophistication that demonstrate both the uses and limitations of standard libertarian theory.5 No systematic account of the field can avoid dealing with the division of the instruments of social control between private litigation and more comprehensive forms of direct regulation.6 The law of nuisance also plays, or at least played, a critical role in determining the scope of constitutional protection that is, or should be, afforded to private property.7 And it turns out to play a critical role in the articulation of the key matters of federalism and judicial power under the Constitution as well. This topic has not occupied center stage in the many excellent treatments of preemption law. But it deserves a more systematic examination of its own, one that I believe vindicates the use of the federal common law of nuisance to resolve disputes that take place between different states, or between citizens of different states. In exploring these issues, this Article attempts to fill that gap in an area that was subject to constant litigation long before the expansion of federal power was ratified in such cases as Wickard v. Filburn8-which, by expanding federal power, expanded the arena for federal preemption.
The purpose of this Article is to trace the constitutional minuet between legislation and common law. The problem here is more difficult than might be expected because both litigation and regulation operate at both levels of our federal system. The most common form of interaction asks whether federal law blocks the preservation of state common law rights.9 In large measure, that debate is guided by the Supremacy Clause in Article VI, Clause 2, which provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Law of any State to the Contrary notwithstanding.10
But in the area of interstate nuisance cases, statutory (but not federal) preemption is also invoked in connection with the preemption of federal common law by federal statute. …