Wednesday, November 28, 2012

Negligent Infliction of Emotional Distress #17: Preemption

As previously promised, this is NIED column #17 on Preemption.  It is primarily intended to address preemption in the Law Review context--but truth be told I did not make it onto a Journal at our law school and so my analysis of the preemption concept may not square with the wisdom of such fortunate students.  However, preemption arises in other contexts, and the episode that this column describes is in fact true.  Nevertheless, at this point I have serious doubts that the friend of my friend was telling the truth when he said he was "really tired because he was out partying with Lindsay Lohan the night before."  I have heard stories of people that simply make things up on Facebook and claim they are friends with celebrities.  I have no patience for these types of persons and do not want anyone to consider me as being "on that level."  I like to think I give people the benefit of the doubt, but I do indeed have serious doubts that Ms. Lohan will be interested in a contract (paying perhaps $100) for the lead female role in Batman in Brooklyn.  Regardless, if she happens to come upon this post by some serendipitous act, I would be very interested indeed in discussing the project with her.  While my time and funding are at all-time lows, my creativity, I think, is at an all-time high.

Negligent Infliction of Emotional Distress No. 17: Pre-Emption

                I recently heard that a friend of a friend had been hanging out with Lindsay Lohan all night. A few days later, Lindsay Lohan was on the news, apparently the victim of an assault in a Manhattan hotel room. 
                Before the assault though, I told my friend, “Look.  Hynes is no longer able to be in Batman in Brooklyn.  It would have been exciting to have him, but we can’t.  But.  If we can get Lindsay Lohan. This film will be incredibly important.  It will be her comeback.  And it is made all the more perfect by my Parent Trap Redux (due about November 18, 2016) – which specifically abrogates the Parent Trap remake.  Give me five minutes with her and I guarantee I can get her to sign on.”
                Previously I had been formulating the idea for the opening shots of the film. It opens with a shot of the new World Trade Center and the Brooklyn Bridge, 50/50 in composition. There would be many more shots. Still shots. Landmarks around Brooklyn. There would need to be music in the background. I thought Dum Dum Girls would be appropriate. I thought “Jail La La” would be appropriate.
                A couple days after that, the assault occurred, and a news item on Pitchfork discussed a new film that Lohan will appear in. It is directed by Paul Schrader (screenwriter of Taxi Driver, director of a dozen other vaguely-acclaimed films) and written by Bret Easton Ellis (uber-hipster). The preview consists of still shots taken around Los Angeles while a Dum Dum Girls song plays in the background.
                I weep.
                I get into trouble when I write about journals, but I must comment upon Preemption.  Many students complain about not being able to write about the topic they want to write about. But there are many topics that occur to me.  They occur whenever I observe a phenomenon in real life (say, for example, psychiatrist liability post-Tarasoff with the “Batman in Aurora” incident as the intro).  They occur whenever I do research for an internship (say, for example, establishing a BAC threshold for marijuana DWIs).  They occur whenever I do my reading assignment for the next day (say, for example, that holographic wills should be admitted in more states).  They do not occur when I actively try to think of a good topic to write about (say, for example, the effect of the Affordable Care Act on Medicare spending).
News flash: I did not make a journal. I wrote a 40 page paper with 188 footnotes though. 
I saw one journal article that had 350 footnotes though. 
It wasn’t good enough for the open note competition. So I am revising it.
But I found, when I did my preemption check, that I was, essentially, pre-empted by two articles.  (Briefly, my article was on the Temporary Help Industry. It was extraordinarily ambitious, but the reason stated for its rejection was that its personal elements detracted from its legal analysis. Understandable.) One addressed unemployment benefits for temps, and the other was basically the same as my article except it was longer and didn’t contain the personal element (and I quoted from it liberally).
                And so we cannot write about that topic—or rather, we just have to “tweak” our topic so that it’s “original” but we may have to focus on a tangential issue that we don’t find as intriguing—because somebody else got there first.
                It is almost like in Manhattan when Woody Allen asks Michael Murphy why he deserves to go out with Diane Keaton.  Murphy says, “I liked her first,” to which Allen replies, “What are you, six years old?” It’s almost like the Great Journal Editors in the Sky are saying, “You couldn’t possibly do a better job, so you can’t write about the same thing.”
                The obvious analogue here is copyright law—but I will not purport to know anything about that since (due to my own great fault and misfortune) I have not been able to take that course.  But I know that it is not okay to steal someone else’s idea.
                I suppose that the rationale underlying preemption is that we do not want to encourage law students to write articles that have little hope of being published, because a journal would not want to publish a duplicative article.  But as far as I am concerned, so long as the article updates an old article, it should not be pre-empted (as indeed mine was not, written as it was in 2009, before the real effects of the financial crisis had been more clearly reflected in reality).
                Which leads to my final point: since the past 5 years have involved a significant social upheaval, preemption should not be a problem, because this “Great Depression Part Two” affected almost every sector of the economy and American life in general—to the point that articles taking stock of its aftermath should not be struck down by the Preemption Hammer.
                Unfortunately for me and Ms. Lohan, the film industry doesn’t even pretend to be fair.  If the legal industry at least wants to give the appearance of fairness, it needs to be changed from the bottom up, and that means journal reform—as vague as it may sound.  I may not make the same film I want to make due to pre-emption, but law students should not be pre-empted from writing the articles they want to write. 
                Christopher J. Knorps is a 3L at Brooklyn Law School.  He enjoys studying bankruptcy law.  He has been told not to be defensive about his failure to obtain journal membership, but he cannot stay quiet in the face of injustice—particularly when it rains down upon him.    

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