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Legal Writing

Preemption Check: Does Your Paper Add New Information to the Field?

Why conduct a preemption check
Before starting to research and write on your chosen topic you must determine whether that topic has already been covered, or preempted, by another author. If your topic has not been addressed you can safely pursue your research and writing. If your topic has been addressed you may still be able to pursue it, if you concentrate on a different aspect of the topic or present a new perspective.   

How to conduct a preemption check
When conducting a preemption check you need to search for articles on your topic using a variety of resources, including indexes to legal journal articles, full-text databases, and working papers depositories. If your topic is interdisciplinary you should also check indexes to journal articles in other subjects. Starting with a list of terms on your topic will be helpful as you conduct your preemption check – consider the subjects your topic may be categorized under and any synonyms for terms on your list. As you search the various resources listed below, be sure to keep track of where you have searched, the search queries you made, and your search results. This will help you avoid duplicate searching and ensure that you did a thorough preemption check. Consider also working through the Preemption Checking CALI Exercise for further explanation of the process of conducting a preemption check.

The Legal Scholar's Guidebook (Elizabeth E. Berenguer, 2020)
Chapter 3 of this guide to scholarly legal writing details the processes by which legal writers ensure that their articles add new information to the legal conversation. It suggests preemption check strategies, including setting up alerts and checking legal periodical indexes. It also offers advice for overcoming insecurity about producing a unique perspective on the law, including discussions with a mentor and peers—addressing questions can strengthen knowledge and distinguish perspective.

Preemption Checking for Journal Articles (Ross-Blakely Law Library video)
This short video from the Ross-Blakely Law Library provides information on the steps for conducting a preemption check.

Indexes to Legal Journal Articles

An index is a database of article citations arranged by subject. When searching in an index you are led to citations of relevant articles, and you then use those citations to locate the full-text of the article.

Index to Legal Periodicals Retrospective (available on campus or remotely with ASURITE)
The Index to Legal Periodicals Retrospective contains citations to articles from over 750 legal periodicals published between 1908 and 1981.

Index to Foreign Legal Periodicals (available on campus or remotely with ASURITE)
The Index to Foreign Legal Periodicals contains articles published from 1985 to the present which focus on international, comparative, or foreign law topics, or are written in other languages.

Full-Text Article Databases

Full-text databases contain the entire text of articles and thus allow you to search every word in an article.

HeinOnline (available on campus or remotely with ASURITE)
HeinOnline has about 1,600 journals in its law journal library and unlike Westlaw and LexisNexis has coverage beginning with the first issue published.   All articles in HeinOnline are available in their original format in pdf. 

Westlaw Law Reviews and Journals (Westlaw password required)
Access to law reviews and journals on Westlaw.

Lexis Law Reviews and Journals (Lexis password required)
Access to law reviews and journals on Lexis.

Multidisciplinary Journal Content

Academic Search Ultimate (available on campus or remotely with ASURITE)
Academic Search Ultimate provides access to over 9,000 full-text journals and covers most areas of academic study.

JSTOR (available on campus or remotely with ASURITE)
JSTOR is a full-text archive of over 2,800 academic journals in the humanities, social sciences, and sciences.

Google Scholar 
Google Scholar enables you to search specifically for scholarly literature, including peer-reviewed papers, theses, books, preprints, abstracts and technical reports from all broad areas of research. 

Working Papers Depositories

Working papers depositories house research papers in development.

Social Science Research Network (SSRN)
The SSRN eLibrary contains abstracts and downloadable full-text versions of working papers.