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Preemption Checking

Introduction

A law review article or note must present original research. To ensure that your research will be original, you must conduct a preemption check. This guide provides a starting point. For the steps for performing a preemption check, see the tab at left. 

What is a Preemption Check?

A preemption check is the process of determining whether another article has already been written on your topic. If you do not find such an article, your topic has not been preempted, and you can proceed with your research.

If you do find any articles on your topic, you may still be able to proceed if you plan on addressing the topic from a new perspective or a different point-of-view from the already-written article. The more articles that have been written on your topic, the more difficult this will be.

When is the Preemption Check Conducted?

A preemption check is conducted after you have chosen a potential article topic but before you begin your actual research. It also is worthwhile to perform the check before submitting your paper for publication.

How is a Preemption Check Conducted?

First, a word of warning: Do not rely only on the full-text Westlaw and Lexis law journal databases. While using these databases is a good start, many law reviews are not included in these databases. Furthermore, the coverage for many law reviews included in these databases does not extend all the way to the first volume of the law review. In sum, relying only on Westlaw and Lexis will result in an incomplete preemption check.