How To Do a Preemption Check

What’s a preemption check? A preemption check is a careful background check of your topic to see if anyone else has used your thesis or argument in a paper before. You don’t want to go to all the trouble of writing your paper only to find out that others have already covered it! Of course you’re going to be looking on Westlaw and Lexis. Where else should you look?

• HeinOnline. HeinOnline has a larger and deeper collection of legal journals than Lexis and Westlaw with coverage that extends back farther in time.
• SSRN. SSRN has the most recent scholarship available–often before it has been published. The editing process can take months, and you can find many pre-publication articles on SSRN. This is especially important if you are writing on a very current, very hot topic.
• Legal Literature Indexes. Searchable indexes provide the title, author, citation, and subject information for journal articles not available in Lexis, Westlaw, or Hein. Try LegalTrac or the Index to Foreign Legal Periodicals. The drawback is that that indexes don’t provide full text, but they can be easier to search for that reason. If you find an article but can’t locate the full text, submit a request through Interlibrary Loan.
• Citing References. If you have a good article or two on your topic, check the references cited in the paper and the references that cite your article to locate other articles on point.
• Book chapters. Don’t forget book chapters! Some academic disciplines, like history, and some areas of law, particularly international law, publish a lot of scholarship in books. Locate the widest selection of books at BYU using the BYU Harold B. Lee Library catalog. Locate books not at BYU using Google Books, Amazon, and WorldCat, and request them through Interlibrary Loan.
• Other Academic Literature. Many academic disciplines frequently crossover with law, like business, economics, sociology, gender studies, and philosophy. If your topic is a potential crossover, be sure to check relevant databases for that subject, which you can find using a subject research guide. I generally recommend Academic Search Ultimate (EBSCO), which contains journals on almost every discipline, for starters.

Last but not least, a great resource for preemption checking is a librarian! We can help you verify that you have done your due diligence.