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Law Review Resources: Preemption Checking

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Doing a Preemption Check

Preemption checking is the process of making sure that your potential note topic has not already been "scooped" and published by someone else. In order to be a potentially publishable article, your treatment of the issue must be original. Preemption can occur in one of two ways:

  • Preemption by law: New case law, statutes, regulations, or other primary law have been promulgated that render your question moot. This is a danger when relying on cases that are currently making their way through the court system, or on potential legislation under consideration.
  • Preemption by author: Another author has already published an article on your same issue with the same argument you intend to make. You can make a different argument on the same topic than an already-published article, but you will want to address the article's argument in your writing.

Steps to doing a preemption check:

  1. Check all of the legal article indexes (see links below, the pre-publication databases to the right, and the Google Scholar box, not just Westlaw and Lexis as they don't have all law review articles!)
  2. If your topic has an interdisciplinary slant, check non-legal article indexes as well.
  3. Search for books and book chapters.
  4. Set up alerts to keep current (see Finding a Note Topic).

Pre-Publication Databases

Many law review articles are made available online through one of the pre-publication databases before they are published. Be sure to check these databases when doing a preemption check!