What Is a Preemption Check?
A preemption check involves searching to see whether someone has already written an article on the same topic you plan to write about. Ensure that your notes, comments, or article have sufficient originality to be published. If your topic remains unexplored, you can confidently proceed with your research and writing. However, if your topic has already been addressed, you may still be able to pursue it by focusing on a different aspect or offering a novel perspective.
For more practice in the art of preemption checking, sign on to CALI and run the Preemption Checking CALI Exercise.
How to conduct a preemption check？
When conducting a preemption check, it is essential to search for articles related to your topic using a range of resources, such as indexes to legal journal articles and full-text databases. If your topic is interdisciplinary, you should also consult indexes for journal articles in other relevant subjects. Creating a list of key terms related to your topic will be useful during the preemption check. Think about the subjects your topic might fall under and any synonyms for the terms on your list. As you search through the resources, keep a record of where you have searched, the queries you used, and the results you obtained. This will help you avoid redundant searches and ensure that your preemption check is thorough. You may also find it helpful to work through the Preemption Checking CALI Exercise for a more detailed explanation of the process.
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.
Guidance
The Legal Scholar's Guidebook (Elizabeth E. Berenguer, 2020)
Chapter 3 of this guide to scholarly legal writing details the processes by which legal writers ensure that their articles add new information to the legal conversation. It suggests preemption check strategies, including setting up alerts and checking legal periodical indexes. It also offers advice for overcoming insecurity about producing a unique perspective on the law, including discussions with a mentor and peers—addressing questions can strengthen knowledge and distinguish perspective.
Scholarly Writing for Law Students: Seminar Papers, Law Review Notes, and Law Review Competition Papers (5th ed. by Elizabeth Fajans & Mary R. Falk, 2017)
Chapters 2 and 3 (on choosing a topic and developing a thesis) have great advice on strategies for close reading of other articles to tease out original and meaningful theses for your own article.