(dissenting):
I would grant the petition for reconsideration for all of the reasons stated in my earlier dissent in this case, published at 652 F.2d 278, 284-90 (2d Cir.1981).
The conflicting Tennessee Chancery Court decisions only serve to emphasize that, with due respect for our distinguished and able colleagues of the Sixth Circuit, we are in as good a position as they to divine what would be the position of the Supreme Court of Tennessee on the issue of whether the right of publicity is descendible. The author of this panel’s majority opinion believes that, were it not for the Sixth Circuit’s decision in Memphis Development Foundation v. Factors, Etc., Inc., 616 F.2d 956 (6th Cir.), cert. denied, 449 U.S. 953,101 S.Ct. 358, 66 L.Ed.2d 217 (1980), he would probably, if serving on the Tennessee Supreme Court, uphold descendibility. 652 F.2d at 282. The writer would certainly do so. In addition, Judge Harry W. Wellford, who as a district judge for the Western District of Tennessee originally upheld descendibility in Memphis Development, 441 F.Supp. 1323 (W.D.Tenn.1977), which was later reversed, 616 F.2d 956, whereupon he considered himself bound on remand to enforce the Court of Appeals’ decision as the “law of the case,” see Memphis Development Foundation v. Factors, Etc., Inc. (No. 77-2545), Memorandum Opinion, Nov. 24, 1982, is now a member of the Sixth Circuit Court of Appeals.
In view of these circumstances and the current conflict between lower Tennessee courts as to that state’s law on the subject, I doubt that the Sixth Circuit would conclude that “the orderly development and authoritative exposition of state law,” 652 F.2d at 282, would be promoted by our deferential adherence to its decision in Memphis Development. On the contrary, in my view the internal Tennessee state court conflict provides an additional reason for our following the usual practice, where we disagree with the reasoning of another circuit on an issue, of deciding a case according to what we believe to be the more rational basis.
For these reasons I dissent.