Preemption Checks

If you are considering publishing your seminar paper, it is important to conduct some preliminary research, called a "preemption check" before you being to confirm your topic will be eligible for publication. A preemption check is a thorough search of the legal literature and analysis of resulting scholarship to determine if another author has already published on your topic, using the same analysis as yours (i.e., preempted your topic). If you are working on a topic that is relevant to fields outside of law (history, sociology, American studies, public policy, etc.), you will similarly need to ensure that you do not cover a topic that has already been written about extensively.

Here are the steps to a thorough preemption check:

Compile a List of Search Terms: Start by compiling a list of search terms that will retrieve any articles similar to your proposed comment.
Search Law Journal Articles: Search for recent law review articles on your topic in the law journal databases on Westlaw and Lexis. If your proposed comment is based on a case or statute, you should also use Keycite on Westlaw and Shepards on Lexis to find articles analyzing the case or statute.
Search Article Indexes: Search in Legal Research Index on Westlaw, using the index headings to find articles on your topic, and in the Current Index to Legal Periodicals on Hein Online, a weekly index service arranged by subject area. Both are good for finding the most recent law journal articles in a subject area. For additional information for searching for articles, see the Finding Articles page in our Summer RA Workshop - 2025 research guide.
Search For Interdisciplinary Articles (if applicable): Try JSTOR, Academic Search Complete, and Social Sciences Full Text.
Search for Books/Chapters: You should also check for books and book chapters that might have been published on your topic, using the Emory University Libraries catalog, and WorldCat, a catalog of the holdings of U.S. and international libraries.
Search for Unpublished Materials: To find working papers and pending law review articles, search the abstracts in the Legal Scholarship Network, a division of SSRN, and the articles in the bepress Legal Repository. If you are researching topics outside of law, you can search all of SSRN to find white papers and other unpublished works -- this will help you find articles that have not yet been published on novel topics. Academic legal blogs, such as those in the Law Professor Blogs Network, sometimes post announcements of new legal scholarship. Try searching in Justia Blawgsearch as well, and reviewing any posts on your topic to see if they suggest an article in progress, or if they're by a law professor who might have a longer work in progress.

Be sure to keep checking for new articles on your topic, and other developments that might affect your research, using alerts on Westlaw and Lexis, and by following topical legal blogs and newsletters.

Questions for the MacMillan Law Library?

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