Journal Preemption: Berkeley Law Research Guide

 

What is a Preemption Check?

Merriam-Webster defines preemption as "taking possession before others."  While generally referring to land, the term is appropriately applied in the journal submission context.  Journal editors are charged with a duty to publish only articles whose thesis or intellectual contribution has not already been the subject of an earlier "seizure or appropriation."  Black's Law Dictionary 1216 (8th ed. 2004).

The following guide provides a variety of resources to aid you in determining if a submission offers a sufficiently original thesis to warrant publication.

Your individual journal will need to make some preliminary decisions about how strictly preemption is to be applied based on the trend in overall quality of the submissions received.

When to Start

You have several options on when to begin your preemption check depending on the nature of your journal's editorial process.  Some journals may have a multi-phase selection process where two editors will do a preliminary reading of an article to determine if it meets base-level standards.  If the article is deemed of interest, then the article is read and discussed by the entire editorial board.  Some journals do their preemption check after the initial read by the two editors and before the final read by the entire board.  Other journals may have a single-phase process and do the preemption check after the article is read by the entire board and slated for acceptance.  Either way, the preemption check should be completed by the time an offer is made to the author.

DECIDE:

  • When the preemption check is to be done?
  • Who is responsible for completing the preemption check?

How to Start

The preemption check can be shared among editors, but is generally done by one person and after a thorough reading of the article.

DECIDE:

  • What kind of contribution is this article making to scholarship?

An article discussing a newly decided case or novel legal theory is going to require a different kind of preemption check than one exploring an already well-established area of law.

Ground-breaking work

If the author is exploring a novel topic, keyword searching will be more effective.  Non-legal literature should be consulted as appropriate (if the author is drawing on economic, business, philosophy, etc.)

Depth/nuance in a well established area

If the author is seeking to expand scholarship in a well established area, keyword searching will be less effective, and the editor will need rely more on skimming the relevant literature to determine where and how this author's article fits into the literature.  Consulting with the journal's academic/ practicing advisors will be particularly helpful in these instances.

Being Thorough

Hopefully, the editor conducting the preemption check has some familiarity with the topic of the article.  If you are the lucky editor needing to do a preemption search for an article in an area in which you know nothing, you will need to spend some time gaining basic familiarity with your topic.

Background information:

  • American Jurisprudence 2d (AmJur) -- South Reading Room, LexisAdvance (Browse Sources for "american jurisprudence"), WestlawNext (Search for "american jurisprudence")
  • American Law Reports (ALR) -- Various locations,  LexisAdvance (Browse Sources for "american law reports"), WestlawNext (Search for "american law reports")
  • Topical treatises -- Search LawCat and other library catalogs for keywords and subject headings). Look first for treatises held in the Reserve Collection.

Author's previous publications:

Take a quick look at your author's previous publications, especially those from recent years.  The author's CV can provide a comprehensive list of previous works depending on when it was last updated.  Search for additional books and articles by your author.

Books on topic:

  • LawCat (the law school's catalog)
  • WorldCat (a global collection of library catalogs)

While you are in LawCat and WorldCat, conduct subject searches on your article's topic. You will want to be aware of books or chapters in books covering the same ground.  Be aware that you may need to broaden your subject search from what you would use if searching an article database.

Legal periodical indexes:

Next, use one or more of the legal indexing databases available to locate articles on topic/ by your author. These indexes assign subject tags to individual articles. Using the subject tags is a more efficient and effective way to locate topical material than searching for words in a title or full text. Accessing the indexes in their native platform provides greater searching flexibility, but some of them may also be searched through LexisAdvance and Westlaw.

will generally have greater historical depth than the full-text article files on LexisAdvance and WestlawNext, and include more journal titles (especially those that aren't strictly ‘legal' in nature). You can use the subjects and descriptors to link to or search for other similar materials.

Full-text article databases:

  • LexisAdvance
  • WestlawNext
  • Both LexisAdvance and WestlawNext support terms and connectors and field/segment searching for more focused results.
  • Hein Online Law Journal Library database allows you to search the full text, title, author, description, state, country, or date.  You can also limit by subject or search within specific journal titles.  When retrieving an article, Hein shows you the matching pages and how many times this article was cited by other articles in the Hein database. You can link out to a list of all citing articles. This is one way to trace the evolution of an idea. Be aware that Hein has an embargo period for many of its journals and may not have the most recent issues.

Don't forget Google Scholar will link you through to most (no promises of all!) of the UCB campus' restricted access databases. Additionally, Google Scholar will link to some working papers available from

but if you have a hot topic, be sure to check bePress and LSN individually.

  • Findlaw Many law reviews post abstracts or drafts of forthcoming articles, or unedited papers from symposia, on their web sites before they appear in the review itself. Findlaw hosts two services useful for discovering preprints: the LawCrawler search engine, which harvests legal web sites, and the University Law Review Project, which has links to law review web sites and an email alert to new law review articles.

Note: If your author is not solely a legal scholar, you can locate articles from other scholarly disciplines using one of the

Some authors advance their central thesis very little from one article to the next.  Your journal should develop standards for when an author's new contribution is deemed significant enough. This can be a tricky determination, since authors develop an expertise in a particular area of law and thus will usually have written many articles more or less on topic. Generally, look for whether whole sections of the article you are considering for publication appear to have been lifted from previous articles. Look, too, for evidence of new contributions (e.g., discussion of a new case).

Staying current:

Tracking Cases and Statues

WestlawNext KeyCite Alert will notify you by email when a case or statute that you are following has been affected by a later court decision, or discussed in a new law review article. LexisAdvance Shepards also offers email alerts.

  • United States Law Week, published by the Bureau of National Affairs, is the definitive source for status of cases on the docket of the U.S. Supreme Court. Supreme Court proceedings are updated daily in the Supreme Court Today section. BNA's other law journals report on lawsuits, administrative enforcement, and appellate court opinions in areas such as banking, tax, securities, environmental, bankruptcy, and employment law. Most of these reports are available on Westlaw and Lexis.
  • Both WestlawNext and LexisAdvance offer 50 state surveys on a variety of topics.
  • For ongoing litigation, BloombergLaw and increasingly WestlawNext and LexisAdvance offer federal docket coverage. State docket information is much more limited.

Follow the news

DECIDE:

  • Is this author's contribution significant enough to merit publication in our journal?

For additional guidance finding books and articles, check out the Law Library's research guide to Source Collection.

Using Outside Resources

Using your Journal's academic and professional advisory board can be helpful when working with a novel article or one where you are unsure of the importance of the author's thesis.  Your advisory boards are composed of important busy people, so use their time well.  BE PREPARED!

Determine the best advisory board member to contact:

Think about your advisors areas of specialization and ask the one most likely to be knowledgeable in the article's subject matter.

Prepare to make contact:

Re-read the article.  Write a short summary (500 words or less). Identify questions (3-5) to ask the advisor.  Include specific page number references or short abstracts if appropriate.

The meeting:

E-mail or call the advisor, introduce yourself, ask for help.  If the advisor is willing to provide guidance, arrange to provide the necessary materials (the abstract, your questions, the complete article) (maybe just an additional e-mail), provide the advisor with a time-frame, set up a meeting to get the advisor's feedback.  Express your unending thanks!

When to Stop

It can be hard to know when to stop your research.  There is no one-size-fits-all rule.  Exercise that fine legal mind you are developing to make a judgment as to whether you have satisfied your duty to make sure the article you are considering for publication has not already been substantially published elsewhere.

Last edited by Edna Lewis, 6 October 2014