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Topic Selection and Pre-emption: Pre-emption Checking

What is pre-emption?

Pre-emption checking requires the potential author to compare their idea against others who have already published on similar topics.  This does not mean the potential author is barred from writing on the same topic, but they must present their own unique argument.  Keep in mind Volokh's recommendations for selecting a good topic:  novel, nonobvious, useful and based on a sound legal analysis.  

Ways to make differentiate your topic from similar papers that have already been published include arguments particularized to different jurisdictions, or groups.  You can present a different set of facts or a different twist on the law.  You should not be scare off because someone has already wrote on a topic which you are interested in writing on, but you must present your own ideas!

Pre-emption checking

While the databases will overlap to some extent, you should still check each one since the contents and dates of coverage do vary.  Follow these preemption check steps before you settle on your topic and repeat them with frequency until you submit your final draft.

  1. Search full-text law review databases.  Identify your keywords to use for your search terms.  Your search should include US Law Reviews and Journals on Lexis Advance and Journals and Law Reviews on Westlaw  and the Law Journal Library on HeinOnline.  
  2. Search for books (and book chapters) covering your topic.  The most efficient way to do this is to you the WorldCat database of library catalogs.
  3. Search for articles that are pending publication and working papers of scholars.  The Social Science Research Network (SSRN) > Legal Scholarship provides full text access to these types of resources.
  4. KeyCite (Westlaw) or Shepardize (Lexis) key cases and statutes (if any) for your topic and check the secondary sources produced in the results list.  If you are researching a statute, check to see if there is pending legislation that might affect your topic development/selection.  If it is a case, or circuit split, check to see if cert. has be filed or granted.

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