What is a Preemption Check
“A publishable article must not pose questions the profession has already answered, and answered in the same way.”* Your treatment of the topic must be original. Your issue can be preempted in two ways.
Preemption by law means that new case law, statutory or regulator law 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.
· Conduct a preemption check before spending time and energy writing and researching your topic.
· The full text databases on Lexis and Westlaw are not necessarily full text! Some law reviews and legal journals are not on Westlaw & Lexis. Others are listed in the databases but not every article from every issue is included.
· Extend your search beyond Westlaw and LexisNexis. Use a variety of databases and a variety of search techniques.
· Keep yourself organized as you work through the databases. Lexis and Westlaw 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.
* Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students 154 (Thomson/West 2005).