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The Steps to Researching and Writing a Scholarly Article: Preemption Check and Preliminary Research

This guide will walk you through the process of researching and writing a scholarly article from preemption check to Bluebooking

What is a preemption check? Why do I need a preemption check?

A preemption check is a search of relevant legal materials to determine if an idea has already been written on and if that article addresses the same topics, in the same manner as you would like to address them. It is very likely that you will find articles similar to the one you would like to write; you must read these articles in their entirety to determine if you can differentiate your idea and conclusions from those presented in the article.

When seeking publication of your article, law reviews and journals will look to the originality of the work. A preemption check ensures that your article will be original work.

Staying Organized

You are going to run lots of searches during your research, and you should track your research. What do I mean when I say track your research? You should, in a form you are comfortable with (e.g. spreadsheet, table, document, etc.), track the following information:

  • Date of search. You cannot finish all this research in one session. This will help you remember when you searched what.
  • Resource searched. Where did you run the search (e.g. Google, Westlaw, Lexis. Index to Legal Periodicals)?
  • Search terms. What words did you search? If you used advanced searches with terms and connectors and/or Boolean operators, copy your entire search. Include any modifications to the search.
  • Number of results.
  • A list/table/spreadsheet/binder of useful results. Save these materials to review in detail. Note why they are useful.
  • A list of non-useful results. Save time by tracking results that you reviewed and were not useful. They may reappear in later searches.

If you would like examples of research logs, run a quick Google Images search for "research log".

Overview of the Preemption Check Steps

When performing each step, it is important to remember that you are casting a wide net. In other words, you are performing a broad search meant to capture diverse materials on your article idea that will both inform you of the existing literature and help you flesh out your own idea. 

  1. Search for legal articles using an index. 
  2. Search for legal articles using full-text resources.
  3. Search for non-legal articles.
  4. Search for books and book chapters.
  5. Set up alerts in order to be notified of any new articles.

Now that you know the steps, we will look at resources for each step.

The Preemption Check Steps in Detail

Step 1. Search for legal articles using an index.

You might be asking yourself, what is an index? An index of legal articles is a list of published articles searchable by keywords. Indexes are a great way to search because the associated keywords tend to be more descriptive of the article content. 

LegalTrac indexes more than 1,200 legal publications including major law reviews, international legal journals, and bar publications. 

Current Index to Legal Periodicals (CILP) on Westlaw contains indexed articles from more than 300 legal publications. Coverage includes the most recent 8 weeks. 

Step 2. Search for legal articles using full-text resources.

Google Scholar searches journal articles from all over the world including legal articles. If you are connected to the Fordham network, you should see a "Find it @ Fordham" link to access paywall protected articles. 

HeinOnline maintains PDFs of entire runs (all published issues) of many law journals and bar publications. When running a search, select the Law Journal Library. 

SSRN maintains the Legal Scholarship Network, one of the largest repositories of legal articles. Authors post full-text articles as well as abstracts. 

bepress Legal Repository offers working papers and pre-prints from law schools throughout the country. 

Westlaw Lexis both offer searchable full-text legal articles, but much of their journal coverage begins around the 1970s. 

Step 3. Search for non-legal articles. Law articles often touch on non-legal issues and sometimes non-legal articles touch on legal issues. Thus, performing a search of non-legal articles is an important step in a preemption check and in your research. If you are writing an interdisciplinary article, it is imperative you look at non-legal articles. 

Google Scholar searches all types of scholarly articles, not just legal articles. If you were writing on an interdisciplinary subject, this is an excellent resource.

JSTOR. You may be familiar with JSTOR from your undergraduate research. JSTOR has more than 12 million articles from legal and non-legal disciplines.

Academic Search Complete has over 10,000 sources on all scholarly topics. To access this database, please visit the Fordham Library Database List.

Business Source Complete is a comprehensive business article database with over 5,000 scholarly journals and trade publications. A must-use resource for business law related ideas. To access this database, please visit the Fordham Library Database List.

Other Databases. The Maloney Library and the Fordham University Library provide Fordham Law students with a extensive selection of databases on a large selection of topics. Maloney Library database list. Fordham University database list.

Step 4. Search for books. Books are easy to find using an online catalog. Catalogs are essentially detailed inventories of library materials. Books are available in print, through databases, and as eBooks

The Maloney Library Catalog is very easy to use. You can run your search from the main library page and limit it to the Catalog before you search by selecting the radial beneath the search bar. You can also limit your results to the catalog after you have run your search. 

Worldcat is a catalog of books at libraries throughout the world. You can search it in much the same way as the Maloney Library Catalog. In the catalog record, Worldcat will also display the closest library that has the book. If the material you would like to borrow is not available at Fordham, you can request them via Inter-Library Loan

Google Books can be helpful in locating books using keywords. Search results will not be as targeted as a search in one of hte library catalogs listed above.

Step 5. Set up alerts to be notified of any new articles. To set up alerts, you will most often need to create an individual account within a database. For Westlaw and Lexis, you can set alerts by clicking the little bell shape icon near the top of your search results, or using the alerts features at the top of their respective home pages.