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and it cannot be reconciled with a commonsense reading of the text of 5(b)." 112 The dissent cited various lower courts that have expressed frustration with the Cipollone framework and stated that "[w]e owe far more to lower courts, which depend on this Court's guidance, and to litigants, who must conform their actions to the Court's interpretation of federal law." 113 On this point, Justice Thomas concluded "the Cipollone plurality's test for pre-emption under 5(b) should be abandoned for this reason alone." 114 To further support this argument, the dissent then wrote that since Cipollone , the Court has changed its doctrinal approach to express preemption, specifically its reliance on the presumption against preemption

doi: 10.1161/01.cir.90.1.27

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