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Preemption Checking for Law Reviews & Journals

Make sure your note, comment, or article is sufficiently original to be published; use this guide to walk through your search for similar scholarship.

What Is a Preemption Check?

A preemption check involves searching to see whether someone else has already written an article that: is on the same topic you would like to write your article on; develops the same thesis you would like to develop; and has the same focus your article would have. During the process you will likely find articles that also address your topic. But don't conclude you are preempted unless after reading those articles you find that you have no new, worthwhile insights to offer.

This guide covers preemption step by step, and in detail. For an overview of the process, see the "Preemption Checking at a Glance" checklist, available below.

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

Why Is It Important?

Law reviews and journals use originality as one criterion to decide if an article is worthy of publication. The goal of a preemption check is to establish that your article, comment, or note is original — that it will add something to the scholarly discussion of your topic.

What Are the Main Steps?

For a thorough preemption check, take the following steps:

  1. Search for legal articles using legal article indexes.

  2. Search for legal articles — including working papers — using full-text sources for legal articles.

  3. Search for non-legal articles if your topic has an interdisciplinary slant.

  4. Search for books and book chapters.

  5. Set up alerts to keep current on newly-published articles.

At each stage use a variety of sources and a variety of search techniques. The more sources and search techniques you use, the more confident you can be that you have found all of the articles related to your topic, and that you have not overlooked a preempting article.

Keep a log of the sources you checked and the searches you did, so that you don't accidentally skip a step — or repeat a step unnecessarily.

Why So Many Steps?

Preemption checks involve the daunting task of trying to prove the negative. You need to be able to claim confidently that no other article quite like yours exists. You cannot say "there is no article like this" until you have checked everywhere that similar articles might be found, searching every resource that exists for finding law review articles, and using different types of searches. So, preemption checking requires an unusual degree of thoroughness, and a tolerance for a certain amount of tedium

The payoff for the painstaking work of preemption checking is twofold. First, you can be reassured that you will not spend months researching and writing an article that cannot be published. Second, you'll come away with a portfolio of articles that will help you refine and research your topic.

What Types of Searches Should I Use?

Preemption checking is about trying to find every article on your topic, not just a few good articles. To come close to finding everything, you need to use multiple tools and multiple search strategies.

In any given source/database, the more different types of searches you run, the more confident you can be that you have found any potentially preempting articles.

These are the major search options —

  • Keyword — terms and connectors (in both full-text databases and in indexes)
  • Keyword — natural language (also in both full-text databases and in indexes). Natural language searches are never enough by themselves, but when used with other types of searches, they can help identify relevant, recent articles that cite to previous scholarship.
  • Subject / Descriptor searches (in indexes)
  • Case Name (in indexes)
  • Statute Name (in indexes)

Am I Preempted? How Can I Tell?

Suppose you find an article very similar to the one you propose to write. Are you preempted? This is a hard question to answer.

Ask yourself — is there anything at all left to say on this topic? Are their new angles to explore? Can I craft a novel thesis?

Ask an editor or professor. Others may have a more objective view of whether your approach is sufficiently original to merit publication.

Check the following book. Chapter 2 ("Inspiration: Choosing a  Subject & Developing a Thesis") has great advice on strategies for close reading of other articles to tease out original and meaningful theses for your own article.

Preemption Checking at a Glance — Checklist

This brief checklist summarizes the essential steps and sources for a successful preemption check.

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