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:
- 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!)
- If your topic has an interdisciplinary slant, check non-legal article indexes as well.
- Search for books and book chapters.
- Set up alerts to keep current (see Finding a Note Topic).