568
Souter, J., dissenting
651-652 (rejecting the "aberrational doctrine . . . that state law may frustrate the operation of federal law as long as the state legislature in passing its law had some purpose in mind other than one of frustration"); Cipollone v. Liggett Group, Inc., 505 U. S. 504, 545, 546 (1992) (Scalia, J., concurring in judgment in part and dissenting in part) (arguing against a "presumption against . . . pre-emption" of "historic police powers") (internal quotation marks omitted).
Nor, finally, is it appropriate for the Court to look to "field pre-emption" cases, see ante, at 544, to support the higher duty of clarity it seeks to impose on Congress. As written and as applied by the majority of Courts of Appeals to construe it, the disputed Code provision comes nowhere near working the fundamental displacement of the state law of foreclosure procedure that the majority's rhetoric conjures.20
20 Talk of " 'radica[l] adjust[ments to] the balance of state and national authority,' " ante, at 544, notwithstanding, the Court's submission with respect to "displacement" consists solely of the fact that some private companies in Durrett jurisdictions have required purchasers of title insurance to accept policies with "specially crafted exceptions from coverage in many policies issued for properties purchased at foreclosure sales." Ante, at 544 (citing Cherkis & King, supra, at 5-18 to 5-19). The source cited by the Court reports that these exceptions have been demanded when mortgagees are the purchasers, but have not been required in policies issued to third-party purchasers or their transferees, Cherkis & King, supra, at 5-18 to 5-19, and that such clauses have neither been limited to Durrett jurisdictions, nor confined to avoidance under federal bankruptcy law. See Cherkis & King, supra, at 5-10 (noting one standard exclusion from coverage for "[a]ny claim, which arises . . . by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws"). Nothing in the Bankruptcy Code, moreover, deprives the States of their broad powers to regulate directly the terms and conditions of title insurance policies.
The "federally created cloud" on title seems hardly to be the Damoclean specter that the Court makes it out to be. In the nearly 14 years since the Durrett decision, the bankruptcy reports have included a relative handful of decisions actually setting aside foreclosure sales, nor do the States, either inside or outside Durrett jurisdictions, seem to have ven-
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