Preemption Checking

 

Preemption Checking: How To Find The Journal Articles (in paper or online) That Will Help You Determine Whether Your Note Topic Has Been (or is being) Preempted By Another Author

This tutorial addresses the locating of journal articles as part of the so-called preemption process. The preemption process entails a meticulous survey of the pertinent legal or specialized literature to determine whether your note topic and your treatment of your note topic have already been published by someone else. Periodicals are publications that appear at intervals. Academic journals and law journals are examples of periodicals.

In the preparation of a piece of student-written legal scholarship you will begin by choosing a topic. In making and refining this choice you will probably look at a variety of periodical materials, including general interest periodicals (such as the New York Times), legal news periodicals (such as The National Law Journal or FindLaw.com), and specialized legal periodicals (such as the loose-leaf service CCH Federal Securities Law Reporter, or a law review such as The California Law Review, or a legal newsletter such as The Federal Sentencing Reporter), or specialized non-legal periodical materials that publish law-related articles such as The Journal of Legal History.

To conduct a preemption check you must do more than just survey some of the pertinent law or law-related scholarly literature that deals with your topic; you must locate and scrutinize all of it. In fact, you should begin your preemption check soon after a topic has begun to engage your serious interest, so that you do not invest too much time researching and writing on a topic already covered by someone else whose approach you are unable to distinguish yourself from.

To find articles in journals, you will generally consult an index (in paper or online) or search online for full text. For the preemption process you will use these same tools to locate preempting literature in law journals, law-related journals, or specialized scholarly journals.

I. Indices /Law Periodicals

The standard law periodical indices are LegalTrac (aka LRI) and Wilson’s Index to Legal Periodicals and Books(aka ILP). These indices are available online and can easily be reached from the Lillian Goldman Law Library’s Legal Databases page. Once you have reached the Legal Databases page, simply scroll down the alphabetically arranged list of databases to get to Wilson’s or Legaltrac. Online, ILP covers more than 800 journals beginning in 1981. LRI online covers more than 900 journals starting in 1980. Experienced researchers use both of these indices in their preemption work because, while these indices certainly contain overlaps and duplications, each index is also uniquely deficient in its approach to subject classification.

The Index to Legal Periodicals and Books is also available in paper form in the Law Library Reading Room (Ref/ K33.I54). The paper format dates back to 1908, and its predecessor in paper, the Jones-Chipman Index to Legal Periodical Literature, indexes back to 1803 (Ref/K33.I539).

Online, Poole’s Plus is a link from this library’s Legal Databases pagePoole’s Plus provides access to legal periodical indexes from 1786 to 1906.

Very current indexing of legal periodical literature appears in the Current Index to Legal Periodicals (CILP), which is connected to this law library’s Legal Databases page. CILP offers subject access to nearly 500 journals, as well as the tables of contents of these journals. Journals tend to appear in CILP two to three weeks after their publication.

If your topic involves issues of foreign or international law, be sure to search for preempting literature in the Index to Foreign Legal Periodicals, which is linked to the Law Library’s Legal Databases page. IFLP covers more than 450 periodicals from around the world and also a few dozen U.S. journals on international and comparative law. The paper version of IFLP is located in the Foreign and International reading Room on L1 of this library (F/I Ref K33.I535).

While LegalTrac and ILP and CLI provide some coverage of Canadian and British journals, for comprehensive indexing of Canadian legal scholarship consult the Index to Canadian Legal Literature, which appears in paper eight times per year (KE1.C36).

For a couple of areas of US law, specialized indices can be helpful to your preemption quest. The Criminal Justice Periodicals Index, a link on our library’s Legal Databases page, has limited usefulness in that its coverage begins in 1999.

More useful is an index entitled Federal Tax Articles, a looseleaf paper publication which contains abstracts of articles arranged by I.R.C section (KF6289. A1 C66). Also helpful is another paper publication, The Index to Federal Tax Articles, which provides refined subject indexing on its topic back to 1913 (KF 6271.G64).

Any of these indices, online or on paper, is designed to provide you with a specific citation to a specific article. Armed with a specific citation you can locate the cited literature in paper form by searching on MORRIS for the call number of the journal that contains the desired article. A call number guide to this library will direct you to the floor of the Lillian Goldman library where it is shelved. If our library does not own the publication you seek, then you can request it from interlibrary loan, an online service of this library. If our library does own the journal but the volume you seek is not on the shelf, consult the Reading Room circulation desk for assistance.

II. Full Text Databases

Or in many instances, the specific journal article you wish to read can be found on a full text database. Both LEXIS and WESTLAW contain full text of thousands of law review articles, and both of these full text services can be found on the law library’s Legal Databases page. LEXIS now offers full text coverage of more than 400 law reviews, and WESTLAW provides full text coverage of 475 journals, combined with abstracted or selective coverage of more than 600 journals. This substantial full text coverage does not supplant the usefulness of periodical indices, however, for at least two reasons. First, LEXIS covers fewer than 450 law journals and law reviews, and WESTLAW’s coverage of 600 journals is often selective or limited to abstracts. Second, at least 300 of WESTLAW’s online full text journals begin in 1993 or later, and only 100 of the full text journals on LEXIS begin before 1993.

Another full text database, HeinOnline, is an image-based collection of full text legal research materials, including 180 law journals dating back to their inception. Hein Online is a link on our library’s Legal Databases page.

III. Non-Law Indices

Online or paper indexing of materials outside the legal literature is complex. Easiest access to indexing of non-law subjects is accomplished online by clicking onto the Yale University Library’s homepage. From there click onto “Research Guides by Subject”. Scroll through the subjects to find the non-law subject that interests you, and then click onto it. On each online Yale subject page you should find listed the periodical index or indices that cover the subject. For paper indices, locate the call-number on Orbis, the University’s online catalogue, and then consult the indices in the on-campus libraries that hold them. For an online index, click onto the link that appears on the Subject Guide to obtain specific citations to the non-law journal articles essential to your preemption check.

Once you have found a specific cite to a non-law journal you may click onto its electronic database from the electronic index or click onto the University’s electronic journals page, and then select the journal by its name. If the journal is available only in paper, you can locate its call number and library location(s) and holding on Orbis by typing in the name of the journal. For example, if your topic is in American History, begin your quest for preempting non-law journal articles by clicking onto the general http://web.library.yale.edu/. From there scroll to “history”, and click onto American History. Notice that the “American History and American Studies Guide to Research Print and Electronic” includes indices and abstracts, citations and annotations, major database links, and some references to print indices. Notice also that Yale University Library’s Nancy Godleski is the subject specialist who has created this Subject Guide, and that you can contact her for assistance. Each of Yale University’s Research Guides is created by a subject specialist within Yale’s library system, and while each such page is uniquely organized and designed, all contain the name and contact information of the creator of the page, which can be useful to you as you delve more deeply into your preemption work.

To explore further the non-law setup on the University Library’s web pages, go back to “Research Guides by Subject”. Scroll again through the alphabetical list of subjects. This time choose Women’s studies as your subject, and click onto its subject guide. As already mentioned, you will see that this page looks quite different from the American History Page, because each of Yale Subject specialists creates a unique page. In addition, you will see that some of the research materials noted on this page overlap or duplicate the materials on the American History page, while others are distinctively related to Women’s Studies. You can conduct similar explorations by clicking back onto “Research Guides by Subject” and choosing “medicine” or “social science” as your subject and locating on each separate Research Guide the online and/or paper periodical indices for your subject.

If your review of the legal literature on your topic yields a specific citation to a non-law journal article that you wish to read, of course you can bypass the University Library’s Research Guides in order to read the article. Just click onto Orbis (the University’s online catalogue), and search for the title of the journal. If the journal you seek is electronic, the record that appears will tell you so, and then you can click onto it. If the journal you seek is not electronic, the call number of the paper journal will appear, along with holdings (the dates and volumes held by Yale), and the abbreviated name of the Yale library that has the journal on its shelves.

JSTOR is a full text online periodicals database which is linked to this law library’s Legal Databases page, as well as to the University Library’s electronic journals list. Most of JSTOR’s contents pertain to Arts and Sciences, Business, and Sciences, rather than law, however, a few law and law-related journals are being added to the JSTOR database. Subject specialist librarians at Yale University strongly recommend that you not try to begin your search for preempting non-law journal articles by clicking onto the online journals page of the University Library web site or the “Other Databases” link from MORRIS’s homepage. While a “cold” subject or keyword search on the online journals page or the “other databases” page may pull up a few pertinent items, this sort of cold searching is unlikely to locate the breadth or specificity of pertinent non-law journal materials that you need to map out and scrutinize for a preemption check. You should use the online journals page to locate full-text articles once you have a citation from an index.

IV. Updating

To determine whether pending not-as-yet-published legal scholarship preempts your work on your note topic, look at SSRN, which is reachable from the Law Library’s Legal Databases page. From there click onto LSN, the legal scholarship network. The LSN homepage provides a link to a list of law and law-related journals and working papers who provide email abstracts of materials they have accepted for publication but have not yet published.

SSRN, the parent of LSN, provides similar advance warning of soon-to be-published non-law scholarship. Of course by staying on top of legal newspapers, legal newsletters, and legal loose-leafs’ coverage of your topic, you will know whether new regulations, statutes, or court opinions have undermined the analysis presented in your note or rendered your topic moot. Such current-awareness periodicals, because of their brevity and journalistic style, are unlikely to contain an actual article that preempts your note.

Consult Legal Newsletters in Print (Ref D/ KF1.L466) and Legal Looseleafs in Print (Ref D/ KF1.L45), or the online version to find the title of a current-awareness legal publication on your topic. Enter the title of the publication into MORRIS to find its call number and library floor location. If this library does not own the publication you seek, then consult the circulation desk for guidance on how to obtain it.

V. Conclusion

The scrupulous search for scholarly journal articles on your note topic constitutes a significant part of the preemption process. Tools available online by means of this law library’s web page, such as MORRIS and the Legal Databases page, and the Yale University online catalogue and web pages (Research Guides by Subject; the online journals page, the Other Databases page) can provide you with pertinent indices, exact citations, and even full text printouts of the articles you may need. Indices in paper format, here at the Law Library, and at libraries throughout the University, may also be essential to your search, depending on the subject you choose and the time period spanned by the law or non-law literature you need to examine. Search for the call numbers of such indices to locate the particular Yale library that holds them.

As always, if you have questions about preemption or any other legal research you are doing, please visit us at the reference desk in the Main Reading Room.

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