Preemption Checking

Preemption Checking: Has This Article Been Published Already?*

This guide addresses locating 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 an article or substantially similar article has been published.  

 

The preemption checking process is made up of three steps.  

  1. First, read the article that will serve as the model and develop a sufficient understanding so that you can search for it. 
  2. Second, create a searching plan, including
    1. Terms and their relations 
    2. Locations (databases, etc) to search 
  3. Examine resulting items to determine whether the article has been preempted. 

 

The bulk of this guide will concentrate on the second issue, “creating a search plan.” If you have questions about the other issues, please don’t hesitate to ask us. 

 

A preemption strategy will be made up of at least the following steps: 

  1. A description of the topic that has been, at least intellectually, broken into concepts. 
  2. Development of a list of alternative ways that the concepts are likely to be described in each type of literature to be searched. 
  3. Determination of how the concepts should be made to relate to each other to return the most relevant material. For example, should terms appear close together or in the same part of the item? 
  4. Determination of the best search method(s) (Boolean, algorithmic, AI enhanced) to use to conduct the searches. Keep in mind the strengths and weaknesses of the various methods and the data to be searched. 
  5. Determination of the databases to be searched and craft searches using the optimum method for the database. 
  6. Execution the searches within each database. 
  7. Maintenance of an active search attitude: for each database, and from one database to another, make necessary adjustment to the search and databases to be considered. Note that this practice may require returning to a previously searched database if insights are developed later. 

 

Types of literature to search and where to search for it 

  • Legal Periodicals 
    • Legal Source is an index of legal periodicals. This source and the related Index to Legal Periodicals indexes journal articles from the early 20th century to today. In addition to the benefit that index searching offers, this database also often includes the abstract or even full text of an article that can be searched.  
    • Lexis and Westlaw each contain the full text of legal periodicals from most American and many English language legal periodicals. While articles are available to search using the syntax and tools available through these databases, there are a few limitations. One is that coverage from before the last decades of the twentieth century quickly becomes scarce and another is that while the vendors have turned the articles into searchable text, they have not indexed or otherwise tried to describe the articles.  
    • Hein Online has the full text of most legal periodicals in English from the first issue to the end or to a very recent issue. Some journals are not released immediately on Hein Online. Hein also has added some indexing and cross referencing. One drawback to Hein is that the online algorithmic and Boolean searching works well, but the text of the article that is searched is derived from Optical Character Recognition software and the result is, apparently, not regularly corrected by humans. 
    • Is there a specialized legal index for your topic like the Index to Foreign Legal Periodicals available on Hein Online from and in print here, https://search.library.yale.edu/catalog/b103507. 
  • Monographs and book chapters are generally searched using library and “union” catalogs. Please note that several tools subsumed in the material covered in the next topic, periodical literature from academic fields other than law, can also help identify chapters. 
  • There is a vast quantity of periodical literature from academic fields other than law. Most of the index tools work in very much the same way as Legal Source referenced above. However, many will not offer full text searching. Rather than list all possible sources, a better practice is to examine a research guide prepared by someone who specializes in the topic. For example, Yale University Library has a research guide devoted to Sociology here, https://guides.library.yale.edu/c.php?g=295859&p=1972674 that directs the user to several possible indexes including Sociological Abstracts. Look for research guides here, https://guides.library.yale.edu/, or at another research guide. 
  • News and popular literature are most easily searched using the databases with which the researcher is already familiar. Lexis has an extensive News library as does Westlaw. In addition, ProQuest (https://search.library.yale.edu/catalog/13234354) has an extensive news collection as does Dow Jones’ Factiva https://search.library.yale.edu/catalog/6313026.  

There are many other possible sources that might help identify a potentially preempting article. If the results of using the tools outlined here are insufficient, please do not hesitate to contact us. 

 

1 or, how to find the journal articles (in paper or online) that will help you determine whether this article or a substantially similar article has been (or is being) published.