Preemption Checking for Law Reviews and Journals

Now that you have chosen a topic for your article or research paper, you must conduct a thorough preemption check to make sure your idea is original. Preemption checking is how you determine if someone has already written an article, comment, or note that is on the same topic, develops the same thesis, or has the same focus as the article, comment, or note you want to write. Preemption checking allows you to make sure that your writing contributes to legal scholarship in an original and useful manner.

Your topic can be preempted in two ways:

• Preemption by law: a new case, statute, or regulation will resolve your topic before you finish your paper.
• Preemption by author: a published paper, or one pending publication, has already addressed the same issue, using the same reasoning.

To avoid wasting time and energy writing about an issue that has been preempted, it's important to find everything (or as close as you can get to everything) that has already written about your specific topic. This can be a big task; you'll need to use multiple tools and multiple search strategies. This requires through and documented searching.

You’ll need to perform a preemption check at least twice - once before you start writing and again before you submit your work for publication. You should also be setting search alerts as you search so that the tools and databases keep you up to date on works being added on your topic.

Plan and document your search. Preemption checking can be complex and a single approach may not work for every topic. Be organized, a research log or outline/citation management system like PowerNotes can be a time-saver.

1. Plan your search terms: 

• Good preemption searches will use all your search skills. Once you have developed a working topic sentence, use it to brainstorm key words and phrases to use in Boolean (Terms & Connectors), Natural Language/Keyword, Subject, and Topic searches. If you are searching a specific case or statute, you'll want to include the name as well as variations upon that name.
• Don't forget to include synonyms and related terms.
• Write these searches down in a notebook or research log so you can repeat them in every search, every time. As you search, you'll begin to find ways you can refine your search. That's great! Add your refined searches to your list.

2. Search legal articles using indexes and full-text sources. Make sure you check for working papers!

• Your search should start in the indexes. They have the widest coverage both in time and the number of titles you can search. Once you have a list of articles and their publication information, you will use full-text sources to skim each article to see how it intersects with your topic. Working papers (i.e. papers that haven't been published yet but should be soon) should be checked by running searches on Google Scholar, SSRN, and BePress. Access these indexes from the library database page. 

3. If your topic is interdisciplinary, search for non-legal articles.

• You'll need to venture into academic databases and resources if your subject is wider than just a legal issue.

4. Search books and book chapters.

• The law library's online catalog will help identify books you need to check. Search WorldCat.org for articles, books, and book chapters from other libraries. 

5. Maintain current awareness of works published as you write.

• Setting alerts and saving searches in each database will make your subsequent preemption checks easier. You'll also know quickly if a new work addressing your topic is published.