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When I was preparing for this panel, I was tempted to begin with something that Fritz Kessler, an old contracts teacher at Yale, might have said on this occasion: “Ben, John—wunderful, wunderful, but you couldn’t be wronger!” Nevertheless, I cannot really do that now that they have said such nice things about Desiano—and correctly so. I would like to begin with a brief story about Desiano that I had not planned to say. When our panel first began deliberating, the other two judges on the panel were prepared to come out the opposite way from me. I argued with them that, for most of the reasons given by Ben, tort law required that we come out the way we did. The other judges on the panel warned me that the Supreme Court would reverse us 9–0. I told them, “I don’t give a blank.” I added, “I think I can still tell them more about torts than any of them except possibly Ruth Bader Ginsburg and Clarence Thomas, the two members of that Court who know something about torts.” (Justice Breyer is a great judge but another Justice used to call him the Commissioner because he comes out of administrative law, which has a rather different point of view.) “Still,” I went on, “I think I can convince them that they cannot reverse us without doing harm to torts in a way that they may not fully appreciate.” And so, it happened, and Desiano is having a good effect on later Supreme Court discussions of preemption as well.
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