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Sunday, October 02, 2022

The Misguided Law Review Note Preemption Checks

It is that time of year that law review students are writing their student notes - choosing their topics, scoping and outlining. I've been struck by how worried they are about being preempted -- many of the students seem to hold this idea - passed on by their law review senior editors - that if someone else is writing or has published an article somewhere on the same topic, then it is redundant. I try to disabuse them from this idea that there can only be one scholarly article on the topic and that originality = novel topic or even novel argument. Originality is an original analysis and an original voice. Seriously, some students do a search, find another article that was written about say, cap and trade energy regulation and decide it is preempted for them. Indeed, I advise my students that when choosing a paper topic - they will encounter one of two problems (always): they will either feel there has been too much written about their issues or too little. I  tell them that normally the first problem is the better one - because it means this is an area of significance, an issue that is of public debate, that people care about the topic and that writing in this sphere - say, content moderation or major questions doctrine or new frontiers of tech antitrust policy - will mean you are joining a vibrant conversation. Finding an original angle, building an original analysis, bringing in interesting and surprising and counter-intuitive arguments, evidence, comparative insights, analogies, methodologies, histories,  to support the discussion are ways to contribute something original to an important legal debate.

Posted by Orly Lobel on October 2, 2022 at 08:00 PM | Permalink


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