Research Tip: Preempting the Preemption Check Blues

Thinking about writing a note for law review? Or for one of the many legal paper competitions out there?

Selecting a topic is the first step toward a successful publication, and is often the most difficult. Even choosing to rework an old seminar paper is no guarantee, as the topic still must pass the dreaded “preemption check”: that is, has anyone published on the same or a similar topic? How can you tell? Here are some tips to make the process easier.

1. Take advantage of research references. Remember that Shepard’s and KeyCite can tell you more than whether a case or statute is still “good law”: they’ll also provide references to law review and periodical articles related to a specific case or code section.

2. Dig into law review databases. Supplement your findings from Shepard’s/KeyCite with a search in some sources for law review articles in full text, such as Lexis’s U.S. Journals & Law Reviews, Combined and Westlaw’s Journals & Law Reviews (JLR) databases. Beyond Lexis & Westlaw, the databases LegalTrac (http://library.duke.edu/metasearch/db/id/DUK00130) and Index to Legal Periodicals (http://library.duke.edu/metasearch/db/id/DUK00535) provide additional sources for locating relevant articles; selected results are available in full text.

Don’t be too discouraged if you find a lot of results—just work to find a fresh perspective on the topic.

3. Keep current with alert services. The research references and law review databases will tell you what’s already been published. But how would you know if someone else has been pursuing the same topic as you? You likely won’t, until they beat you to press--but there are a few ways to keep abreast of recently-published scholarship on a topic.

Lexis and Westlaw both offer alert services. Simply save your search from the journal and law review databases as an alert, in order to receive email notifications of new results daily, weekly, or at the interval of your choice.

There is also the “Current Law Journal Content” site, from Washington & Lee Law School (http://lawlib.wlu.edu/CLJC/index.aspx?id=1051). Although results are not provided in full text, this is a powerful search for the tables of contents of more than 1,300 law journals. You can subscribe to an RSS feed to receive results in an aggregator (such as Google Reader), or arrange to receive results of a search by e-mail.

4. Ask a librarian for help. As always, the Law Library’s reference staff is happy to assist with searching for materials on a topic, or suggesting strategies to help narrow down an idea. Keep in touch at http://www.law.duke.edu/lib/ask_librarian .