Preemption Checks

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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5 Responses

  1. I wonder about this clause. In copyright terminology, the only way another piece could contain the Authors’ “original” ideas would be if it were plagiarized. “Novel” would be a better term of art here; the point is to watch out for ideas that have not previously been published, rather than for ideas that originated from the Authors.

  2. A Nonny Mouse says:


  3. Dave Hoffman says:

    A Nonny Mouse

    You have to love the irony of an anonymous commentator who tries to turn a general comment into a particular indictment. If I wanted to talk about a specific journal’s practice, I’m sure I could have named it. Luckily, I’ve a few forthcoming pieces, so the mystery can live on.

  4. A Nonny Mouse says:

    Actually, I was just curious if the biweekly preemption check was being required at more than one journal. I thought it was odd when I saw it a bit ago. Sorry if that offends.

  5. TJ says:

    I agree that it is basically always possible to write around an existing article, and I agree that people overvalue novelty in the legal academy. But two points. First, just because it is possible to “write around” an existing article does not mean that one should do so — sometimes an existing article may say enough of what one previously intended to say that the new article has the appearance of artificiality, of emphasizing a distinction merely because it is distinct and not because it is all that significant in the scheme of things. I had initially understood this as what you meant by “false novelty,” but you seem to condemn “false novelty” while praising “writing around,” which to me are at least sometimes the same thing. If you take out cases where people are making novel-but-obvious distinctions, then I would argue that preemption is possible.

    Second, I wouldn’t take this particular clause as indicative of an overemphasis on novelty. Yes it is basically always possible to write around an existing article — but not if you are not checking for preemption and thus do not know the article exists.