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It is great to be here, both because it is always nice to come to NYU, and also because it is nice to see so many friends, old and new, among the people who are visiting NYU. Today, we are talking about preemption. This issue deals not just with the question of torts and pharmaceuticals: It deals with some of the deepest questions we have before us in terms of regulation and incentives in a time of crisis.
It seems to me, speaking as an academic and not as a judge, that there has been a tendency for courts to view the topic of preemption very narrowly and to lose many of the nuances that are really involved. Judges view preemption questions in terms of the case coming before them, and they give binary, yes or no, answers. But most of the issues are more complicated. I am going to try to sort out some of these issues, which are often conflated in the cases.
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