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.    

Negligent Infliction of Emotional Distress: No. 12: Law Review, Journals, and Blue-Booking

As we come to the close of another productive year at BLS, 1Ls once again huddle into the library at 9 AM on a Saturday morning to pick up their journal writing competition packets.  They are not supposed to have any idea of “the law” on their topic, and they are supposed to learn it based upon a limited set of materials, and get it right, or lose.  You are not allowed to do outside research (or, outside research is not required?), and I seriously question the degree to which “cheating” occurs here, but that is another column for another time. 

                2Ls this year will remember last year’s painful topic on tax apportionment of franchises that have more than one branch in a state.  I came up with a brilliant argument that it was not the mortgage underwriters’ labor that should be taxed by Ford Motor Credit Company, but rather, it should be the labor of the salesmen, who –it is true—do make a sizable part of their wages from commissions of sales (which may have different tax implications), but are responsible for the purchaser’s initial seeking of the loan.  The labor they expend over two or three days was far more “valuable” than the underwriters estimated time of twenty minutes to “put the loan together.”  Perhaps this was an incredibly stupid conclusion to reach for this case comment, but it appeared to be original, concise, assertive, and reasonably well-cited (I will avoid a deep discussion of the “?’s” I put into my endnotes to stay within my word limit).  And then the fateful day came when people began receiving their phone calls.  And I slowly realized that, after dropping beneath the 50% mark in the class, and failing to make moot court, I was not going to be on a journal.  Being a writer (and having improved from a B to an A in Legal Writing between semesters), the one thing I wanted out of law school more than anything else was denied me, and it hurt.

                So I turned away and laughed with derision at the beginning of 2L year, when all I heard for a few weeks were complaints about “pre-emption” and “not knowing what to write about.”  I said, “I wanted it as much as anyone, and you got it, so you better shut up.” 

                Of course I never said that to their face.  But law students that complain about not being able to find a topic to write about are a perfect example of the whiny types that flood law schools across the nation: let’s complain about everything that’s not perfectly suited to our needs—because, we’re not supposed to be creative.  These students need not concern us, for pre-emption is, again, a much bigger topic.  However, law students that complain about the process of becoming a member of a journal and the responsibilities that membership and/or publication entails, may have a good claim for negligent infliction of emotional distress—for few other activities may be as tedious and inconsequential as this.

                Blue-Booking is the first bane of existence.  “The central function of a legal citation is to allow the reader to efficiently locate the cited source.” (THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION, “General Principles of Citation,” at 1 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010)).  Great!  How about this?  “Because of the ever-increasing range of authorities cited in legal writing, no system of citation can be complete.  Therefore, when citing material of a type not explicitly discussed in this book, try to locate an analogous type of authority that is discussed and use that citation from as a model.  Always be sure to provide sufficient information to allow the reader to find the cited material quickly and easily. (See id.).  Even the Bluebook recognizes that its system cannot be comprehensive.  One could question why we need a whole other separate citation system apart from those already in existence, but I’d rather ask a more interesting question: what is “authority?”

                Just because I earned a J.D. from Harvard, just because I made their Law Review, just because I clerked for a Federal Judge, just because I worked at a white-shoe law firm, just because I published a few articles, and gained some kind of respect in my field, I might seek a career in academia and publish and then I will have become “an authority.”  Or, (less hoops) if I become a judge (or a law clerk), and I write an opinion, I become an authority.  However, writing about one’s own life has no place in a law review article, even though I may be considered an authority on my own existence.  “You’re not allowed to have any original thoughts,” people often say.  It’s too likely you come off sounding like an idiot who has not deeply canvassed the law if you don’t cite to authority for every proposition you introduce.  And yet, you must do a pre-emption check, and make sure that your topic has never been written about before. 

                My argument is that all journals should be abolished at every law school except for one Law Review.  I mean no disrespect to my friends on the other journals (and indeed, there is no qualitative difference in intelligence, so far as I can tell), but membership is hardly prestigious when 20-25% of the class gets on a journal.  When you’re one of the few that’s put in a good faith effort for every honor they could get, and you lose, and lose, and lose, you think you’re doing something wrong.

                Memo to disaffected law students: you’re not doing anything wrong.  It’s an imperfect system.  Once all journals are abolished, we will only produce the amount of articles that we “need.”  We won’t have a tidal wave of articles on every conceivable legal topic known to mankind, only to be revised to make an alternative conclusion acceptable when a case like Citizens United comes along.* 

                Me, bitter?  Maybe—but I proudly write on my name card, whenever I sneak into a journal event, “NOT A MEMBER OF XXX JOURNAL; FOUNDER OF MEP.”  There are other ways to make a positive contribution to this school than to be one of the hundred Bluebook Slaves in your class.  If you don’t make it onto a journal you should make fun of everyone who is.  Not only will you make yourself feel better, but you will be right that it is all-too-often nothing more than an exercise in extremely-refined masturbation.  Better yet—start, or join, a student organization that is devoted to sitting around and making fun of journal articles.  Call it the Brooklyn Law School Journal of Rejects, put out one volume per year, and write boldly original articles that are sloppily-blue-booked (because no one really cares about that anyway—see Posner's article "Goodbye to the Bluebook" for an hilarious evisceration of the stupidity of elitist citationism) and written for the Us Magazine crowd—people would dig it.    

                Maybe a lot of this is coming out wrong but here is my main point: as long as you are proud of what you produce, that is all that matters.  If you do make a journal, and you slave away for months on your note, and you find out that, unfortunately, you won’t be getting published, the satisfaction you derive from the process should be your reward.  Good luck, 1Ls.   If it doesn’t work out for you, join the BLS Journal of Rejects.  My 14,000 word, 40-page, 120-footnoted UCWR Employment Law paper gets to be in volume #1.  And I also promise to accept ONE failed competition submission from this year.  Open notes now being accepted.** (***).    

*The complaint often leveled at journals is the glut of faculty scholarship—not student scholarship.  This does not change the rationale behind my proposal to abolish all journals but one.  The only question is whether faculty members are compensated for publishing, or if retention of their job is contingent upon a steady stream of publications.  Encouraging a greater amount of original student work rather than faculty might be one possible reform.

**While this is a legitimate call for Open Notes for the BLS Journal of Rejects, 1Ls should be made clearly aware of two things: #1- My friend, who did not make into a journal, revised his competition submission a little bit, entered it into a competition, and won—so don’t trash your submission unless you are absolutely certain it is a complete failure.  #2– Open Notes are accepted by all 4 journals here—the Law Review is the most unforgiving (with the same deadline, around January 20, for Open Notes as for “member notes”) and the Journal of Law and Policy provides the generous extension of June 15^th. 

***Submissions are also being accepted for the BLS Advocate.

               Christopher J. Knorps is a 3L.  He enjoys studying bankruptcy law.  He runs the blog flyinghouses.blogspot.com.  This summer he is in Chicago.  Next year he will institute the Monthly Expense Project, serve as an upper class delegate on the SBA, and serve on its career services committee.  He will also be filming a Batman remake.  Please e-mail him at Christopher.knorps@brooklaw.edu if you have complaints or are interested in participating.  You may also start a passive-aggressive comment fight but only if you promise not to be lame or mean about it. 

Negligent Infliction of Emotional Distress: Not in Love (Legally)

                 I have observed an interesting phenomenon in law schools generally: students that arrive single will often meet their spouse during the course of the three years they are here.

                This happened with several friends of mine which will remain unnamed—one of them met their spouse through membership on a journal, and another through placement in the same first year section.  It would seem as if these are the two most common “places” within law school where future spouses meet, but I would imagine a similar concept holds true for Moot Court, or certain classmates on the same career path that end up in more than a few of the same courses. 

                There are basic assumptions about what it means to be a law student and a lawyer.  One of those assumptions is that, one day (perhaps) we will have money, and since we will have money, we will be in the “right” position to start a family.   If you fail to take the right first steps, you may graduate alone, and you may then be afraid of dying alone.  To paraphrase one of our career counselors, compare walking down the street alone, to walking down the street with a girlfriend or boyfriend—more people check you out in the latter situation, no?  This is a metaphor for presenting an effective case for yourself as a job applicant – but the purported truth of such a hypothetical is troubling.   (Not to mention the inference that, those are who are in stable, happy relationships are more likely to get a job.)

Interviewing is only like dating to a degree—you interview in the hopes of a job that will last more than a year or two—but it is unlikely to expect lifetime employment.  Rapid-fire dating and one night stands may be fun up to a point – but once that point is reached, more “practical” dating becomes the rule.  A lifetime relationship is sought.

Law students are probably not the most physically attractive (or morally attractive) people out there.  However, law students are picky because they don’t have much time—they only want to spend time with someone they could actually see themselves marrying.  It follows that, when work and companionship are combined, the stress of dating subsides, a partner is found, and no time is lost.  If that is the only proof to my theory, so be it.  You may ignore what I say, and that is fine, but when you go out into that cold place known as reality and you lack the benefit of an immediate mutual interest, have fun trying to convince other bar patrons about the awesomeness of the automatic stay. 

On the other hand, claiming that one day you will win a $100 million toxic torts judgment may potentially be an effective hook.  We know we have plenty of interesting things to talk about, and some are more talented than others when it comes to engaging “outsiders” in that interest, but generally, “bar scoping” is limited to what you look like, what you do and how much you make.  Nobody cares about whether you are a proponent of judicial activism.  Other lawyers may scoff at such bar conversation – but if not, you may have a winner.

So maybe, when I graduate single, it will be different from the five years I spent in between college and law school, going out to bars, trying to meet someone, anyone, to place a succor on the loneliness of existence.  More likely is that I will continue to be cheap, claim that bars are exploitive, and write similar op-ed pieces until I die.  Only they will be published on my blog and not BLS advocate. 

The moral of the story is this: treasure what time you have left and don’t waste it by sitting alone in your room drinking and smoking.  It is unfortunate that I cannot practice what I preach.  I can’t change society and I can only change myself—but, with limited exceptions, I’m not open to changing myself to “fit in.”  There is a Black Flag song called “Society’s Tease” whose lyrics I will now appropriate to drive home my point:

    Always
                Wherever I go
                Playing some stupid role
                Sometimes I look at the world
                And I just want to say,
                “NOOOOOOOOOOO.”
               
                Somewhere
                Something went wrong
                Where love plays stupid tricks
                But I’ve got a plan
                The world will finally be saved.

                Christopher J. Knorps is a 2L at Brooklyn Law School.  He enjoys studying bankruptcy law.  You may find his other work at flyinghouses.blogspot.com.  He also invites you to the electrifying conclusion to this week (Sex & the Law Week)—the HLPA Open Mic!  Please sign up on posted fliers to perform “a” Vagina Monologue, or your own original performance. If you are too shy to read, please come to watch the action, as a voluntary $5 donation will get you complimentary dinner and drinks.  

Negligent Infliction of Emotional Distress - Super Priority Administrative Expense

Around this time of the semester, it’s important that you keep your priorities straight.  As a 2L, I can only speak to my present experience and my experience last year.  3Ls, I will attempt to anticipate your priorities. 

                In order to measure this model appropriately, I am going to use the inverted pyramid that Dean Gerber has supplied us with in his Business Reorganizations class. (Please see www.blsadvocate.org to see all images).  The inverted pyramid is the priority scheme for Chapter 11 claims.  There are 9 levels.  If you are at the bottom (equity/shareholders) you stand the greatest risk of receiving zero, so any task at the bottom may in fact, not be given any time at all.

                We will start with 1Ls as I know them best.  Now, as a BLSPI mentor, I was recently instructed to e-mail my mentee and tell them to “stay strong” during this week, as it’s a particularly brutal one.  Moot Court Trial Division tryouts were this week – and if you participated, it was likely that you could not do any other homework until your tryout was finished.  The anxiety of it all was crushing.  And then, when you entered that room, the judges told you to, “Have fun.” 

                Moot Court is probably a senior secured claim/lien for anyone dying to get the chance to act like a lawyer before they officially become one.  Almost everyone I know on Moot Court (trial, at least) has told me that it has been the most rewarding experience in law school for them, period. 

                For individuals such as myself, who were 2Ls trying to do the impossible –that is, make Moot Court and a Journal through an open note —who had the draft of the paper intended for the open note due Friday - it presented a quandary.  Clearly, for me, moot court/open note occupy high rungs on the inverted pyramid.  However, I doubt I will be advancing to the next round (I ended up the one getting crucified on cross, not the defendant—and update: I did not advance), and so one more claim will be allowed to fit. 

                For the sake of simplicity, I will offer my suggestions for prioritizations now.  You may fill in your own pyramid if you like, but I include my own personal one in the illustration, and the “generic one” for all 2Ls in the text below.

 

1Ls (Who Want to Work for Skadden, et. al.):
 1) Studying/Outlining/Exam Practice – GRADES (note: Moot Court may be occupying #1 if you are called into the 2^nd round) – YOU MUST BE IN THE TOP 10% TO BE CONSIDERED FOR OCI;
2) Class Participation;
3) Getting a Summer Internship;
4) Making Friends and Influencing People (partying, dating, etc.);
 5) Journal Competition;
6) Getting to Know Professors;
7) Getting Involved in the City Bar;
8) Thinking about Transfer Opportunities;
9) Staying Sexy.

               

  (A short revision for those 1Ls that have no interest in the big paycheck – because, you know, about 1-3% of the classmates in our year will actually be getting those jobs – becoming as involved in Pro Bono Projects as possible is probably the best thing you can do if you are a public interest person, and that should be in your top 3 (probably #3, as it’s possible for the internship to follow naturally from the Pro Bono work).

2Ls:
1) Grades/Moot Court/Journal (if you didn’t make OCI, and you’re not working as a summer associate, grades should still be top priority – if you are on Moot Court or Journal, I believe these take top priority—If you are on both, Moot Court takes priority in terms of TIME over Journal, which varies by deadlines);
2) Getting Internships or Clinics for the Fall and Spring;
3) Getting a Summer Internship/Job;
4) Making Friends and Influencing People;
5) Defining Your Area of Focus;
6) Pet Projects (Writing Contests, Clubs, Shot-by-Shot Remakes)
7) Building Relationships with Professors;
8) Staying Sexy;
9) Making Yourself Stand Out

3Ls:
1) Securing a Job after Graduation;
2) Moot Court/Journal;
3) Getting Internships or Clinics in the Fall and Spring;
4) Making Friends and Influencing People;
5) Grades;
6) Staying Sexy;
7) Chilling Out (if you are so lucky to be able to!);
8) Publishing Articles;
9) Defining Your Reputation/Leaving Your Mark.

           

     Of course, dictating priorities is always controversial, but I do believe there is one generic, straightforward, guiding principle that controls: law school can be extremely boring at times, and you need to find the part about it that you love, and put yourself in that happy (or, more accurately, “fun”) place as often as possible.  For me, it is being 29 and getting to hang out with 23 year olds and getting to act immature.  Those lost years I spent working in the wilderness of the low-wage sector with few friends or similarly-situated co-workers have been recompensed by making new friends in the same situation, with a slightly wider age range.  No matter what priority scheme applies to the “reorganization” of your professional persona, appropriate management of priorities is a simple, yet useful method of reducing stress.

   

             Christopher J. Knorps is a 2L with very strange priorities.  One of them is to hold an Open Mic on Thursday, April 5^th, in Geraldo’s, from 7-10 PM.  He hopes you will consider performing, or at least attending.  The event is free but there will be voluntary $5 donations taken for Sanctuary for Families, and free food and beverages.  There will also be performances of Vagina Monologues.  Please e-mail Christopher.Knorps@brooklaw.edu if interested in performing or reading or singing or dancing or playing.