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Preemption Check Checklist

Steps for conducting a preemption check when writing a journal article or substantial research paper.


Now that you have chosen a topic for your article or research paper, you must conduct a thorough preemption check to make sure your idea is original. Your topic can be preempted in two ways:

Preemption by law: a new case, statute, or regulation will resolve your topic before you finish your paper.

Preemption by author: a published paper, or one pending publication, has already addressed the same issue, using the same reasoning.

To avoid wasting time and energy writing about an issue that has been preempted, it's important to find everything (or as close as you can get to everything) that has already written about your specific topic. This checklist will help guide you through that process. 


Follow these steps to conduct your preemption check:

  1. Generate search terms.
  2. Search for published law journal articles.
  3. Search for articles from other disciplines (if necessary).
  4. Search for books and book chapters.
  5. Search for unpublished materials, like unpublished articles and working papers.
  6. Subscribe to current awareness alerts, to stay informed about new publications.

Each page of this guide walks you through a specific step. If your topic involves international or foreign law, see the "Additional Resources" page at the end of this guide.

Remember, preemption checking is a complex process, and a single approach may not work for every topic. Don't hesitate to contact a law librarian if you need help customizing your preemption plan.

Starting with a Case or Statute

Is your topic based on a case or statute? Your very first step should be reviewing the citing references in Westlaw and Lexis:

  1. Pull up your case or statute in Westlaw and click "Citing References" (top of the page). 
  2. Review the cases that cite your case or statute, to ensure it's still good law. 
  3. Review the secondary sources (especially law review articles) that cite your case or statute, to ensure your topic hasn't been preempted. 
  4. Set an alert to receive notifications of any new citing references for your case or statute by clicking the small bell icon (top of page).
  5. Repeat the process in Lexis: pull up your case or statute and click "Shepardize this document" (right side of page).
  6. Review cases and secondary sources that cite your case or statute.
  7. Set an alert by clicking the small alarm clock icon (top of page).‚Äč
  8. For more information about creating alerts in Westlaw and Lexis, see Step 6: Current Awareness Alerts

After reviewing citing references, follow the general steps in the checklist above to complete your preemption check.

General Tips

Get organized: A thorough preemption check will give you a head start on your research. Now is a good time to set up a citation management tool, like Zotero, to help you save and organize the useful resources that you find during your preemption check. For more information about Zotero, see this guide:

Don't panic if you find something on your topic. Reflect on how it can enrich your analysis of the subject, and how your piece can add to the debate. Remember, your topic does not have to be original, only your thesis. Even if someone else has already written about your topic, you can usually find a way to focus your argument in a unique way.

Ask an expert: In addition to the steps listed above, consider consulting a professor or librarian who specializes in the area you are researching. They may have additional ideas of places to search (especially for current news, conferences, and unpublished materials).

Ask a Law Librarian

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D'Angelo Law Librarians
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Chicago, IL 60637