Seeking for Righteousness

The Personal Blog of Kaimi Wenger

A sad law review tale

Two years ago, while I was clerking, I had a great idea for a law review article. It was clever; it was innovative; it was a nice, moderate compromise in a thorny area of scholarship, but also a radical new way of looking at things. It was related to an exciting area of law, and it was something I believed was a good idea.

Of course, as with any clever-new-idea article, I did a pre-emption check. No one else had written about this — it was my idea. And so I sat down and wrote. I wrote an outline, and eventually about 20 pages of text. I compiled stacks of research. The article was coming into shape. The underlying idea even made it into case law: I wrote up a quick sketch of the idea as it related to a case we had; the judge liked it, and the sketch ended up being integrated into a published opinion, an opinion that I really liked.

Around this time, other things began cropping up. I had cases to juggle and other academic projects I was working on. I don’t recall exactly why or how, but the article was back-burnered. And once it was back-burnered, it was forgotten. I set the draft down in December of 2001, and there it sat for two years. Not that I was being idle. In the interim, I started a new job, watched my daughter’s birth, and published two other articles. I occassionally remembered the piece, but it remained back-burnered.

A recent high-profile case brought the issue back into the spotlight, and I thought about finishing the article. More recently, I decided I really needed to send out a piece for this Spring season. And so I re-motivated myself. I dusted off the article draft, and it still looked good. Of course, it still needed work, so I got to work. Every spare minute of the past few weeks was devoted to writing, re-writing, re-acquainting myself with my pile of research. I was aiming to have a draft ready to send to colleagues by this week — an ambitious goal, but made easier by the 20 pages already done. I felt the academic juices flowing; I was on a roll.

It belatedly occurred to me that my pre-emption check was over two years old.

To be specific, it occurred to me this afternoon. I immediately hopped onto Westlaw, and made the sad discovery: Someone else had already written my article.

It’s a good article. It was a symposium piece, and it’s gotten attention from others in the field (I knew the idea was good!). Alas, it doesn’t have my name on it.

At the moment, I’m in a kind of post-discovery shock. I’m fully aware that I had a chance, and I blew it. The dates make clear that, had I finished the piece for the Spring 2002 season, I would have been the first or tied-for-first to publish this idea (the other piece has a December 2002 date). As it is, I can remind myself that I had the thought first, because it is still in the published opinion — but that’s poor consolation.

I’m contemplating my options now. I may end up switching gears with existing research and draft, and trying to make it into a “put a new spin on Professor Z’s idea” rather than a “look at this new idea” article. I don’t know that that will be successful, and in any case, that would be a less impressive, less important article. It’s more likely that I will drop this particular project entirely for now, and switch to trying to get another half-started draft finished in the next weeks.

This experience hasn’t been particularly pleasant (though better to note pre-emption now than later). And this has also made me reiterate an old note-to-self: Write up your ideas! Get them in finished form, and get them out there to be published. And so, with that thought, I’ll close this blog post, and get to work.

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March 8, 2004 - Posted by | Uncategorized

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