What Is Preemption?
As you research, you need to be aware of the concept of preemption. In general, a Note is preempted if a previously published work discusses your topic so completely that there’s nothing new for you to say, or if events have resolved the legal controversy you analyze. Your work should make an original and useful contribution, and preemptive authority renders it less original and less useful. Additionally, if you hope to submit your piece to a journal for publication, you should know that journals may deem a preempted piece unpublishable. Journals differ on where they draw the line between preempted and publishable Notes.
Because it is usually possible to “write around” preemptive authority, it is best to think about preemption as a matter of degree. Legal change that resolves the central legal controversy addressed by a Note is the strongest form of preemption. For example, if a Note analyzes a circuit split and the Supreme Court resolves that split, the Note may be of less interest to academics and practitioners. Similarly, a Note analyzing a statute might be preempted if the statute is amended. It can be more difficult to write around this type of preemption, so you would be wise to avoid issues that are likely to be resolved soon.
A weaker form of preemption occurs when a professor or student publishes an Article on the legal issue you are researching. Although you certainly do not want to have to cite another source for the central proposition of your Note, you should be able to shift your focus or tweak your thesis to keep your Note original and useful. Finding an existing Article or Note on your topic can even be a blessing—you can mine its footnotes for sources that you may have overlooked, and it may raise unanswered questions that you can address or call for further research that you can supply.
Being preempted is frustrating and can be a tremendous waste of your efforts. Therefore, it is critical for you to perform a thorough preemption check periodically while working on your Note. You should aim to locate and review every published source on your topic. Be sure to check the following sources:
- Westlaw: For more information on using Westlaw to perform a preemption check, see Westlaw Guide to Law Review Research, available at http://lscontent.westlaw.com/images/banner/SurvivalGuide/PDF08/08GuidetoLRResearch.pdf.
At Westlaw, several databases are particularly useful:
- Current Index to Legal Periodicals (CILP)
- Index to Legal Periodicals (ILP)
- Journals and Law Reviews (JLR)
- Practice Area Databases
- Lexis: Lexis and Westlaw will give different results for the same query, so be sure to use both. Also keep in mind that Lexis and Westlaw do not cover the universe of law journals, so do not rely on them alone.
- Social Science Research Network, www.ssrn.com: Especially useful for searching scholarship that has not been published yet.
- JSTOR, www.jstor.org
- Google and Google Scholar
- The University of Chicago Preemption Check Checklist, available at www.lib.uchicago.edu/e/law/db/ej/preemption.html, lists additional sources that you may find useful.
What To Do If You Think You Are Preempted
First of all, don’t panic. You probably aren’t really preempted. Students often think they are preempted but later discover that they can make plenty of original and useful contributions to the scholarly literature with the research they have already done.
Can you distinguish the new source? You might think that it addresses your topic at first glance but discover that it is actually different from yours in some relevant way.
Can you reframe your Note? Even if you find a source that makes your central argument, you may have analyzed the background law more accurately, or done more comprehensive research, or extended your analysis to new jurisdictions. Or you may find that the existing analysis is outdated and that yours incorporates significant new developments. If so, you can avoid doing new research or changing your arguments if you shift your focus to the other contributions your Note makes.
Are there errors or weak arguments in the piece you are worried about? A surprising amount of published legal scholarship is sloppy. Your original contribution may be your superior execution of the research project.
Does the newly discovered publication or case leave new questions unresolved? With a little work, you should be able to incorporate the publication or case into your analysis, adjust your thesis, and create a novel piece of scholarship that builds on the existing literature.
Do you disagree with the arguments or conclusions that the newly discovered source presents? Even if the source is flawless, you can contribute to the debate by taking a position no one else has. Good scholarship is often designed to provoke a debate, so you can bet that there is room to disagree with most authors.
It is possible (but unlikely) that none of these strategies will work for you. Maybe you could write around the preemptive authority but would be boxed into a position that you don’t agree with. Or maybe a statute or judicial opinion has so thoroughly resolved the controversy you intended to address that the research you’ve done so far is essentially useless. In that case, you may unfortunately have to scrap your topic and come up with a new one.