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Preemption Checking: Preemption Check

Checklist for conducting a preemption check.

What is a preemption check?

“A publishable article must not pose questions the profession has already answered, and answered in the same way.  A preemption check is conducted to determine whether there is a new law or a prior publication that renders an article moot.”*   Your treatment of the topic must be original.   

(A preemption check may be optional for an Upper Level Paper)

Your issue can be preempted in two ways:

 Preemption by law means that new case law, statute or regulation has made your topic moot.   An in-depth and complete search in the case law, legislative, codes and regulations databases is a must to make sure your issue is not already addressed by law.

Preemption by author means that someone has already addressed the topic.  A thorough search must be conducted to determine if any publications or articles have already been written addressing your same issue using your same reasoning.  We are focusing on specific arguments and claims, not just a broad treatment of a topic. 

* Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 154 (Thomson/West 2005).

Words of Warning

  • Conduct a preemption check before spending time and energy writing and researching your topic. 
  • The full text databases on Lexis and Westlaw Edge are not necessarily full text!  Some law reviews and legal journals are not on Westlaw Edge & Lexis.  Others are listed in the databases but not every article from every issue is included. 
  • Extend your search beyond Westlaw Edge and Lexis.  Use a variety of databases and a variety of search techniques.
     
  •  Keep doing your preemption check weekly.  Set up alerts to run weekly in Westlaw Edge, Lexis, Google Scholar and other databases that provide the alert feature.
     
  • Keep yourself organized as you work through the databases.  Lexis and Westlaw Edge have research trails but many other databases do not have this feature.  List all search queries you run in each database and record citations for those publications addressing your topic.
  • "An article on the same general topic is not necessarily preemptive if the author plans to discuss a different aspect of the topic or to take an opposing viewpoint. ...whether a published article or opinion so completely and competently discusses the author's topic that the author cannot significantly add to that discussion."  Source, at 979.

How to Conduct a Preemption Check

STEP 1: Define the subject.  List keywords, synonyms, and terms of art.  

What is the difference between searches for a preemption check and your initial searches to pick a topic? At this point you should have a specific issue statement or a series of statements that you need to support to prove your argument.  Your search queries are more detailed than they were at the start of the process.  Create a search query using Boolean connectors, or use the Advance Search form in Westlaw Edge or Lexis.

Step 2: Search law reviews, legal periodicals, and American Law Reports.

A thorough preemption check begins by looking at what has already been written on a topic.  Law Reviews and legal news collections are the place to start your inquiry.  In other scholarly fields, this is called a "literature review."  Lexis and Westlaw Edge allows you to easily search all these materials with one search.

Step 3: Search treatises and other secondary sources found on legal research vendors' sites and the online library catalog.

Make sure a book has not already been written on your same topic that makes the same arguments.

Step 4:  Search codes and statutes.  

Search legislative sources even if you have a common law topic.  Sometimes laws are proposed in response to a court's decision. 

Step 5: Search case law.

Step 6:  Search working papers (pre-publication databases).

Authors post digital copies of their articles on the web months before it is published in law reviews or journals on sites such as SSRN.  Use the Working Paper tab above to locate these pre-publication digital collections.

Step 7:  Is your topic interdisciplinary or does it cross-disciplines?

Then perform the same search steps listed above but in that subject's databases.  Ask a librarian for help at this step.  We can point you to many other databases in other disciplines.  Below are links to databases in other subjects.
 

Create searches and set-up alerts for your searches in the major databases below to search once per week.

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How to Work Around the Preemption

So you think you are preempted.  What now?

  • "You still may use the same general idea, but you may have to focus on another angle or take a unique approach.  Take a different position or propose a new solution. 
  • Articles more than five years old may be outdated because of new cases.
  • You may be able to show how conclusions or predictions in the old article have proven incorrect in light of new case law or statutes.
  • You may be able to narrow or broaden the topic previously addressed."  

Source, at 985.

  • Extend the argument.  Apply the law to a new situation.
  • Update the material.  Have later cases interpreted the statute or applied the key case?  Has the legislature responded to the problem?