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.
Just because there’s an article that shares one characteristic doesn’t mean that you are preempted. In general, preemption occurs when there is nothing new left for you to say or if the legal controversy has been otherwise resolved.
To make sure you aren't preempted, you must attempt to find every article or book ever written on your topic. This can be a big task; you'll need to use multiple tools and multiple search strategies. You are also trying to prove a negative - that no other article exists that does exactly what your article will do. 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.
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 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. (Right now, Google Scholar captures SSRN and BePress information but that could change at any time. Verififcation that this is still true is required if you only run a Google Scholar search.)
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.
Searching the law library's catalog and catalogs of other libraries will help identify books you need to read.
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.
Check out the CALI lesson on Preemption Checking. CALI access codes are available from the Reference Desk.
Check out the books listed to the right.
Still stumped? Stop by the Reference Desk and a librarian can help you!
Preemption is a subjective determination. If you think you are preempted, ask yourself: Is there anything left to say? Do you have a new perspective you can explore? Have there been significant developments since the article you’ve found was published?
Ask a professor, editor, or librarian. They will have a more objective view of how your work fits into existing scholarship and can help you revise your approach to avoid being preempted.