“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:
* Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 154 (Thomson/West 2005).
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 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 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.
So you think you are preempted. What now?
Source, at 985.