JD Writing Requirement: Preemption & Scope

Preemption is a prohibition on writing about a topic that has already been discussed and / or analyzed with the same approach or lens by another scholar. Duplicative scholarship is barred by academic journals. That said, if a topic has already been discussed at length, it does not mean that is it preempted. Instead, preemption merely means that the writer must develop a novel lens through which to analyze the issues. Thus, shaping both your approach and scope is iterative in nature: the initial approach selected, or the scope of the topic chosen, may require updating after conducting a preemption check. Finally, if your preemption research finds no similar or related scholarship, that may be an indication you should adjust your topic: ideally there should be some literature (which you will cite to) that provides a context, a conceptual model or framework, an analytical mode or lens, or some other perspective to analogize and ground your paper.

Preemption verification is not as simple as Googling the topic by key word, nor conducting a basic search on HeinOnline. A robust preemption check should be guided by the paper's subject matter. The Preemption Checking Checklist guide lists many sources to check, as appropriate depending on the nature of your subject matter. That said, here are a few general tips for beginning the process:

1. Case, Statute, Circuit Split, and Comparative Papers

• If you are writing about a case, statute, or circuit split, you can use the Westlaw "Citing References" tab and the Lexis "Other Citing Sources" tab to view sources that cite the focal case(s) or statute. Select secondary sources as the Content Type, and filter for law reviews. 
• If you find a law review article that discusses a topic similar to yours, review the sources that article cites to find overlapping subject areas. Be sure to read those sources to make sure they don't preempt your proposed topic.
• For background and context, including older, established articles, try legal indexes using broad descriptive search terms, and look in results for subject heading/descriptor tags or combinations of tags that can help you find more related literature. Keep in mind that indexes do not search the full text of an article. They usually only search the title, author, some abstracts, and keyword or subject heading descriptors, but an index is a way to focus your search on articles that are really about the concept rather than simply mentioning one of your search terms in passing. The "2. Search Legal Literature Indexes" tab of the Preemption Checking Checklist guide lists several.

• Because case or statute and circuit-split papers tend to be time-sensitive papers, be sure to check works in progress by other academics, who may post "pre-print" or working drafts of their articles in progress. The "5. Working Papers, Preprints..." tab of the Preemption Checking Checklist guide lists several sources to check for emerging scholarship.

2. Non-Legal Framework Papers (non-"doctrinal" analysis or interdisciplinary papers)

• Start with the resources you already know: how did you become familiar with the topic? Use those materials to develop a roadmap for further investigation, starting with the sources that the first resource cites.
• If you have a good scholarly article or book to start from and it is from a non-law field, you can follow up on the author(s) and related scholarship that has cited to them. Go beyond Lexis, Westlaw, and Hein Online article collections, since these focus on traditional legal scholarship and related scholarship may be further developed in non-legal or cross-disciplinary sources.
• The "4. Search Other Disciplines" tab of the Preemption Checking Checklist lists some tools for both finding full-text literature from other disciplines and for tracing citations to any starting-point materials you already have.

3. New Trends Papers

• Leverage any resources you already have: how did you get interested in this "bleeding edge" issue? What kinds of materials have you seen cited or discussed in analyzing this topic, or in framing a legal paper on a similar new trend or topic?
• Try full-text article collections using loose keyword permutations (think of lots of synonyms, general terminology, or  to describe a new or emerging topic). The "3. Search Full-Text Legal Articles" and "4. Search Other Disciplines" tabs of the Preemption Checking Checklist list good options depending on if your new trend paper topic draws largely on traditional legal scholarship or interdisciplinary or other fields.
• Also be sure to check works in progress and blogs or other informal writing by other academics, who may soon publish on leading edge topics. The "5. Working Papers, Preprints..." tab of the Preemption Checking Checklist guide lists several sources to check for scholarship on emerging issues.

Evaluate whether updating the scope would resolve the preemption, whether the paper would still be feasible, and whether it would still be of interest to you. Consider adjusting: 

1. Where (jurisdiction / geography)

2. Who (affected population)

3. What (type of lens / fieldwork applied)

4. When (time period)

Alternatively, rather than updating your scope due to preemption, you can limit the scope to the earlier scholarship by responding with an analysis précis or literature review. However, particularly for an Option 2 paper, you should confirm with your project supervisor that the "four corners" format is acceptable for developing a thesis. 

For detailed instructions about specific aspects of preemption verification:

1. Berkeley Law's Preemption Checking Checklist - systematic searching by resource type

2. University of Washington Law - Preemption Checking; useful search strings for full-text searches