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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