So you've chosen a topic for a scholarly article, now what?
Now it's time for the preemption check to determine if anyone has already written on your topic. A thorough preemption check allows you to proceed with confidence that you are analyzing a novel issue and ups your chances for publication.
You should perform a preemption check after you have chosen a potential topic but before you begin your actual research -- keep in mind that the preemption check, itself, is often a good start to research.
The main piece of advice for conducting a preemption check is to search many different databases because the various databases often cover different content. This ensures that you are doing a thorough check.
Databases to search for your topic/issue:
1. A full-text law reviews and journals database on Westlaw & Lexis
2. The Hein Online Law Journal Library
3. Index to Legal Periodicals (ILP)
5. Index to Foreign Legal Periodicals for international or foreign legal topics
6. JSTOR, ProQuest, or Google Scholar for multidisciplinary articles
*7. SSRN or Bepress Legal Depository for working papers on your topic
*There is not a consensus among legal scholars or law reviews & journals whether working papers need to be considered in a preemption check. In my opinion, they do.
Generally, searching all of these databases for your issue will be sufficient to find similar articles. When searching, if you find that the topic has been covered, it may be preempted, and you may have to tweak your topic to analyze the issue in a new light. Or you may need to find another topic altogether. These issues depend on the specific articles that you find during your preemption check.
If you find that there is an article out there that discusses your topic, but it is old and/or 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.
There are many resources available on the Internet to guide you through a proper preemption check. Just do a simple Google search to find more information.