What is a preemption check?

As you consider topics, be sure to include time to survey the literature to insure that the same topic, theory and analysis has not been addressed or published.   The goal of a preemption check is to establish that your article, comment, or note is original — and it will add to the scholarly discussion of your topic.  Be mindful that determining if your topic has been preempted can be very subjective.  Consult with your editor for further direction.  You should conduct a preemption check before you begin writing and before publishing.

• Start by looking for published articles on your topic in HeinOnline, Westlaw and Lexis+ law reviews and journals.
• Check a periodicals index, such as the Index to Legal Periodicals or Current Law Index, in both law and other disciplines, if appropriate.
• Check and search databases that are interdisciplinary such as JSTOR, Google Scholar and Academic Search Complete.
• Check for unpublished materials by searching SSRN and the Digital Commons Network -Law Commons.
• Create search alerts so you are current with any new developments that may affect your research - a change in the law or a new publication.

For more practice in the art of preemption checking, sign on to CALI and run the Preemption Checking CALI Exercise.

Looking for topic ideas?  Consider the mission/goal of your journal and follow the editorial guidance.   These sources may  provide, prompt or generate issues that may be of interest.

Circuit Splits

An alternative search strategy is to check cases, news or other secondary sources to find references to circuit splits.  Search legal news or caselaw in Lexis+ or Westlaw.  Search law reviews and other secondary sources in HeinOnline, Lexis+ and Westlaw. 

Strategize your searching with keywords or boolean terms and connectors.  Include alternate terms and date restrict or use additional keywords to narrow your search.