Before you begin research on an article topic, you must determine whether the topic has already been covered by another article. This process is called a preemption check.
A thorough preemption check allows you to proceed with confidence that you are analyzing a novel issue and increases your chances for publication.
Preemption checks are performed after choosing a potential topic but before beginning to conduct in-depth research. Keep in mind that the preemption check itself is often a good start to research.
If there is a substantial amount of time between your initial preemption check and when you submit your article for publication, you may also want to perform a preemption check before submitting.
A proper preemption check requires you to search many different databases because the various databases cover different content. Searching a variety of databases ensures that you are doing a thorough check. Follow these simple steps to conduct a thorough preemption check.
Step 1. Construct a list of terms and synonyms to describe your topic
Use a legal thesaurus to identify alternative words used to describe your topic. Many legal thesauri are available in the Texas Tech Law Library.
Once you start your preemption check, you might notice terms of art or other language patterns used to describe your topic. You may need to revise your preemption check searches to account for any alternative terms.
Step 2. Organize your preemption check
To keep track of your preemption check searches, keep a running list of the search terms.
You should maintain a record of all journal article citations in your search results that you feel need further investigation.
Step 3. Search a variety of databases for articles on your topic
1. A full-text law reviews and journals database on Westlaw & LexisNexis
Search the full-text Law Reviews and Journals database on Westlaw or on LexisNexis. You should run multiple searches using your terms list.
2. The HeinOnline Law Journal Library
HeinOnline’s full-text law journal database contains some titles that are not available on Westlaw & LexisNexis and also contains broader coverage of law reviews than Westlaw & LexisNexis. HeinOnline is available through the Library’s Electronic Resources page.
3. Index to Legal Periodicals (ILP)
ILP indexes articles from thousands of legal periodicals and also indexes law books. ILP is available through the Library’s Electronic Resources page.
4. Current Index to Legal Periodicals (CILP)
CILP is more current than other journal indexes with topical access to over 500 legal publications. This resource is available on Westlaw.
5. SSRN for working papers on your topic
The Social Science Research Network (SSRN) has a Legal Scholarship Network (LSN) that contains abstracts of working papers or papers recently accepted for publication. You should check SSRN for any articles on your topic that might be published soon.
6. Google Scholar, JSTOR, or ProQuest for multidisciplinary articles
If your topic is likely to be addressed in non-legal journals, check databases of such journals. Google Scholar allows you to broadly search for scholarly literature. Google Scholar can be found at http://scholar.google.com/. You may not have access to the full-text of the articles through Google Scholar, but it will alert you to potential red flags.
The Tech Libraries also subscribe to JSTOR and ProQuest, which are multi-disciplinary databases. These can be accessed through the Tech’s main campus library website and searching the alphabetical list of databases.
If you are interested in the full-text of an article found in a resource that is not available through the Texas Tech Libraries, please see a Reference Librarian for inter-library loan information.
Generally, searching all of these databases for your topic will be sufficient to perform a thorough preemption check.
When searching, if you find that your topic has been covered, it could be preempted, and you may need to revise the focus of your topic to analyze the issue in a new light. If you are unable to find a new angle, you may need to find a new topic altogether. These issues depend on the specific articles that you find during your preemption check.
If you find that there is an article that discusses your topic, but it is old, and there has been substantial change in the area, you may not be preempted because you could update the issue. But if you find a large number of articles analyzing your topic from many different angles, it may be hard to convince a journal that your article is worth publishing. A journal may think that the topic has been overdone and pass on publication.
Follow the ITAC process to develop search terms for preemption checks:
Issue defined in legal terms.
Terms that are necessary to the legal issue.
Alternatives that are reasonable.
Connectors to join the terms in a reasonable way
After running a preemption check, you can ensure that you are not preempted during your writing process by setting up alerts related to your topic. Setting up alerts keeps you abreast of the most recent developments in the law that may help strengthen your paper. It is recommended that you set up alerts on all of these resources to stay as current as possible, several sites allow you to set up alerts.
LexisNexis has an “Alerts” option that allows users to set up notifications. On the top right-hand side of the screen, select the “Alerts” option from the “More” drop down menu and follow the instructions to set up alerts.
Westlaw also provides the option of setting up notifications. On the top right-hand side of the screen, select the alerts option. From the Alerts page, you can set up different types of alerts and further narrow them as needed.
Setting up Google Alerts is a simple process; you do not need a Gmail account to use Google Alerts.
Different research websites offer similar notifications. Be sure to sign up for email alerts from websites that have several articles related to your topic.