dissenting:
The majority opinion in this case advances the growing view that because several recent Supreme Court opinions have found that federal regulations did not pre-empt state common law claims, the Supremacy Clause is no longer fashionable. I do not agree.
According to Article VI of the Constitution, the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Thus, it is well settled that state law that conflicts with federal law is “without effect.” Cipollone v. Liggett Group, Inc., — U.S. -, -, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (citation omitted). In this case, federal law provides that Appellee manufacturers may produce vehicles equipped with airbrake systems (which are not antilock brakes) and Appellants argue for a state law that would not allow the manufacture of such vehicles. Insomuch as one conflicts with the other, both cannot survive. I conclude that the “supreme Law of the Land” must survive and an action brought premised upon the validity of the state’s law must be dismissed.
The Supreme Court has developed principles to guide pre-emption analysis to avoid unintended displacement of State authority over matters within States’ historic police powers. In conducting a pre-emption inquiry, “a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find preemption.” CSX Transp., Inc. v. Easterwood, - U.S. -, -, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993). Therefore, pre-emption should not be found unless it is the “clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). “Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue.” Easterwood, — U.S. at -, 113 S.Ct. at 1737.
Through the National Traffic and Motor Vehicle Safety Act (the “Safety Act”) 15 U.S.C. § 1381, et seq., Congress authorized the Secretary of Transportation to regulate motor vehicle safety. Under authority delegated by the Secretary, the National Highway Traffic Safety Administration (“NHTSA”) administers the Safety Act by promulgating appropriate minimum performance standards for various motor vehicle components. The NHTSA has devised far-reaching regulations governing the manufacture of vehicles. The regulation covering the performance of truck brake systems is 49 C.F.R. § 571.121 (1991) (“Standard 121”).
Standard 121 has a long and tumultuous history. Its initial effective date was March 1, 1975. Standard 121 as originally promulgated effectively required the inclusion of antilock brake systems by requiring vehicles to be able to be stopped within certain distances at specified speeds without significant lockup. See Paccar, Inc. v. National Highway Traffic Safety Admin., 573 F.2d 632, 637 (9th Cir.1978). In response to the Ninth Circuit Court of Appeals’ opinion in Paccar, *1529the NHTSA revised Standard 121 by adding a specific statement that the stopping distance criteria and related performance requirements which necessitated antilock brakes were not applicable to trucks and trailers. Other sections of Standard 121 relating to performance standards for airbrake systems were left intact. The exeihption of trucks and trailers from the antilock requirements was in effect at the time of manufacture of the two trucks involved in this case and remains in effect today. This scheme effectively gives manufacturers the choice of whether to install antilock brakes or air-brakes.
It is important to recognize what this case is not about. This is not a case where one may be held to have violated a state requirement to exercise due care because one has acted in a fashion permitted by law but dangerous under the particular circumstances surrounding the action. It is hornbook law that operation of a motor vehicle at the maximum speed permitted by law may violate the legally required duty to exercise due care when and if the circumstances surrounding the operation — rain, sleet, snow, poor visibility, crowded roadway, etc. — make such a speed careless. I submit, however, that one could not predicate a claim upon the operation of a vehicle at or under the. allowed speed limit upon an assertion that the speed limit in the particular state ought to have been less than that determined by its legislature.
It is the latter type of claim attempted here. Appellees do not admit that state law “allows” federal law to establish permissible brake systems, but neither do they dispute that state law may make such systems unlawful under particular circumstances. Appellants say that the federal law, being wrong or poorly advised, must yield to a state law which may be found to have been violated by those who followed the federal law. There are no changing circumstances; the NHTSA has authorized airbrake systems on these vehicles and has, presumably, considered all circumstances extant in this land touching upon that authorization. The federal law governing brakes on motor trucks is not subject to veto by a state judge instructing a state jury that it may disapprove of the federal standard and find that it violates state law.
The majority opinion reads the Supreme Court’s recent pre-emption exposition in Cipollone as precluding any implied pre-emption analysis where Congress has included an express pre-emption clause in a statute. In this, I believe the majority has gone too far. Unquestionably, Cipollone limits the role of implied pre-emption where there is an express pre-emption clause. But nothing in the fact-specific holdings of Cipollone mandates that implied pre-emption is no longer viable in the face of an express pre-emption clause.
In Cipollone, the Supreme Court considered whether state law damage claims were pre-empted by provisions of the Federal Cigarette Labeling and Advertising Act, enacted in 1965, and its successor, the Public Health Cigarette Smoking Act of 1969. These acts mandate specific labels that must be included in the advertising and packaging of cigarettes. The Court held that the 1965 Act pre-empted state bodies only from mandating particular cautionary statements and did not pre-empt other state law damage actions. Cipollone, — U.S. at -, 112 S.Ct. at 2619. One of the reasons given by the Court is that “there is no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common law damage actions.” Id., — U.S. at -, 112 S.Ct. at 2618. This language suggests that implied pre-emption by conflict remains a viable concept.
The Court analyzed pre-emption under the 1969 Act separately. Noting that the preemption clause in the 1969 Act was specifically given a broader reach by Congress, the Court analyzed each state law cláim to determine if the “legal duty that is the predicate of the common law damages action” depended on subject matter governed by the federal regulation. Cipollone, — U.S. at -, 112 S.Ct. at 2621. The Court concluded that some of the common law claims were preempted and others were not. The significant aspect of the Court’s holdings is that the gravamen of the pre-emption analysis was whether or not the common law claims were based on something that was not touched on *1530by the federal regulation. Those claims that did not depend on regulated subject matter were not pre-empted.
The pre-emption inquiry is different in this case because Plaintiffs make no claims which are not covered by federal regulation. Unlike the Court in Cipollone, we are faced with state common law claims which are not expressly pre-empted but nevertheless rely upon subject matter governed by federal regulations. Thus, the holdings in Cipollone are not controlling. Cipollone and this case would be the same if, in Cipollone, the only claim asserted was that the cigarette manufacturers were liable only because they had placed the warnings mandated by federal law on these packages.
The majority opinion also misconstrues the Supreme Court’s opinion in Easterwood. The issue in Easterwood was whether state law claims of negligence with respect to warning devices at grade crossings and train operating speeds were pre-empted by the Federal Railroad Safety Act and regulations promulgated thereunder. The Court stated that the issue of pre-emption “depends on whether the regulations issued by the Secretary cover the subject matter of the two allegations, each of which we may assume states a valid cause of action.” Easterwood, — U.S. at -, 113 S.Ct. at 1738. The Court concluded that federal speed limit regulations covered the subject matter of the common law of train speed, and thus expressly pre-empted the claim of excessive train speed. Id., — U.S. at -, 113 S.Ct. at 1742.
With respect to the negligence claim about use of particular warning devices at grade crossings, the Court found that the applicable federal regulations did not cover the same subject matter as the common law tort claims and concluded that the grade crossing claim was not pre-empted. Easterwood, — U.S. at -, 113 S.Ct. at 1742. After analyzing the federal regulations in its express preemption inquiry, the Court rejected petitioner’s claim of implied conflict pre-emption “on the basis of the preceding analysis.” Id., — U.S. at -, n. 12, 113 S.Ct. at 1742 n. 12. The majority reads this statement as reinforcing “the commands of Cipollone that where there is an express pre-emption provision, it is to be the alpha and omega of preemption analysis” because the Court did not conduct a separate implied pre-emption analysis after its express pre-emption probe. I believe that the Court did not conduct an implied conflict pre-emption analysis because, “on the basis of the preceding analysis,” it found no conflict between the federal regulations and the common law negligence claim.
Unlike the factual scenarios considered by the Supreme Court in Cipollone and Easterwood, this case involves only state law claims that impose legal duties predicated on subject matter squarely governed by federal regulations. Standard 121 governs brake equipment that manufacturers may install on trucks and Plaintiffs’ common law claims focus exclusively on the type of brake equipment installed by the manufacturers. I agree with the majority that we are bound by Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir.1989), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990), and its holding that the Safety Act does not expressly pre-empt a common law tort claim regarding equipment installed on a vehicle where a NHTSA regulation affords the manufacturer an option between types of permissible equipment. Therefore, only the doctrine of implied pre-emption remains to resolve the conflict between Plaintiffs’ claims of negligence for failure to install antilock brakes and Standard 121 which permits the installation of airbrake systems.
In Public Health Trust v. Lake Aircraft, Inc., 992 F.2d 291 (11th Cir.1993), a prior panel of this court anticipated this scenario. Lake Aircraft involved a common law product liability claim of defective design of an airplane seat for failure to use an energy absorbing design. The applicable federal regulation stated that if manufacturers employed energy absorbing designs, the designs must comply with certain specifications. The seat at issue was not energy absorbing, but otherwise complied with federal regulations. After determining that the express pre-emption clause was inapplicable to matters covered by the tort claims, the court found no conflict between the federal regulation and the state law tort claims. Specifically, the court stated:
*1531Some question seems to exist about what should be concluded when a state regulation which lies outside the scope of an express pre-emption provision (which, under Cipollone, implies that the state law is not pre-empted) nonetheless .actually clashes with federal law (which traditionally has implied that the state .law is preempted).
But the case we decide today presents no actual conflict. Federal aircraft design regulations did not require, but did permit manufacturers to use energy absorbing designs, such as the laced, cut-out portion featured in the pilot seat of the aircraft in this ease. [Appellant] seeks to hold defendants liable for errors of omission: he claims defendants should have exceeded the minimum federal standards for aircraft design, but failed to do so. Appellant does not contend defendants are liable, under state law, for an act of compliance with a federal requirement, nor does he challenge defendant’s choice between two federally approved options analogous to the federal standards in the airbag cases. Cf. Taylor v. General Motors Carp, (federal law mandated use of either seatbelts or airbags, so state law action with effect of requiring airbags took away the belts-only option and was impliedly pre-empted).
Lake Aircraft, at 295 n. 5. (some emphasis added) (citations omitted). In contrast to Lake Aircraft, the case at bar does involve a challenge to a manufacturer’s choice between two federally approved options analogous to the federal standards in Taylor.
As the Supreme Court acknowledged in Cipollone, the Supremacy Clause mandates that state law that conflicts with federal law is “without effect.” Plaintiffs’ common law negligence claims in this case depend on a finding that the manufacturers violated a duty, imposed by state law, of reasonable care by installing airbrake systems on the trucks at issue. Indeed, the trial judge would have to instruct the jury that state law required the jurors to determine if the manufacturers should be held liable for failing to inelude antilock brakes on the trucks. Standard 121 expressly permits the inclusion of airbrakes on trucks and trailers. The assertion of state law claims which would forbid the manufacture of brakes expressly permitted by federal law is a classic conflict where, under the Supremacy Clause, federal law must prevail. The conflict in this case is unavoidable — Plaintiffs assert state law said to forbid doing that which federal law permits.
State common law is law that may conflict with federal law just the same as state statutory law. In Cipollone, the Supreme Court faced the question of the scope of the phrase “no requirement or prohibition” and stated that the phrase “sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common law rules.” Cipollone, — U.S. at —, 112 S.Ct. at 2620. The Court continued by quoting an earlier case: “[state] regulation can be as. effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” Id., — U.S. at -, 112 S.Ct. at 2620, quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959). Thus, the effect of a prevailing claim of common law negligence for failure to equip the trucks with antilock brakes would be the same as if the State of Georgia enacted a statute saying that a manufacturer cannot sell for use in Georgia any truck without antilock brakes.1 As noted above, Standard 121 expressly permits manufacturers to install airbrake systems on trucks and trailers. If the Supremacy Clause means anything, it must mean that federal law prevails in this conflict.
. Indeed, the legislature of the State of Georgia expressly adopted the common law as it stood on May 14, 1776 as binding law of Georgia. Georgia Code of 1863, § 1, ¶ 6. Thus, common law is Georgia law through legislative action.. Furthermore, the Constitution of the state of Georgia expressly ratified and affirmed decisional law of Georgia and imbued court decisions with the force of law. See Ga. Const. art. XI, § 1, ¶ 3 (1982).