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.