Preemption Checks

I was signing a law review copyright agreement today.  It states that the Authors covenant that they “shall check on a bi-weekly basis to ensure that the Article has not been preempted.  If the Article has been preempted, the Authors shall notify the [Law Review] no later than 48 hours after discovery of the Preemption.”  Preemption is further defined as the “publication of another article, essay, or other piece in a legal publication that contains, in significant form, the original ideas of the Authors.”

This is perfectly fine, as far as it goes.  I can see why the law review would want to know if someone has been writing in the space occupied by my article, and I can further understand why they’d want me to do the checking for them.  But it’s long been my view that there is basically no such thing as article preemption — a necessary adjunct to the concept that there’s nothing new under the sun is that you can always find some way to write around existing scholarship.  Indeed,the fretting by junior scholars (and law journal editors) about preemption is a signal that they overvalue novelty. False novelty, along with quick and dirty normativity, is one of legal scholarship’s primary sins.  Junior scholars should be happy to see writing in their field that “covers” a topic that they are working on.  It will give them something to frame around, to react to, and will ensure that there are consumers for whatever they end up coming up with.  Of course, you should cite to articles which talk about similar topics, and you need to make very clear what your distinct contribution is. But completely preempting articles?  I don’t think they exist.

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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:

    Fordham?

  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.