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Research Strategies for Federal Water Law: Conducting a Preemption Check

Researching at UNM

What is a preemption check, and why should you conduct it?

A preemption check is the process of determining whether the topic you are writing about has been substantially covered by someone else in the past.
  • Preemption checks looks for substantial treatment only - an article on your topic in a legal newspaper or bar journal is not considered notable.
    • Even if a topic has been examined by other authors, it may still be a valid choice if you differentiate your paper by, say, taking a different position on an issue.
  • Preemption checks not only help you make sure that you are talking about a novel and useful subject, but also enhance your chances of being published if you should decide to try.

In the box below, find out how you can perform a preemption check using resources available through the UNM School of Law Library.

Conducting Your Preemption Check

To perform a preemption check, conduct a thorough search of available legal publications. Here are a few resources and tips to get you started:

  • Search the full-text law journal databases available through UNM and the law library, specifically.
    • Hein Online is one great resource for full-text law review articles dating back to the inception of the journals to which Hein provides access. 
  • Use Indexes, such as Westlaw's Current Index to Legal Periodicals or the indexes available on Legal Source (linked at the bottom of this box)
  • Use Google Scholar
  • Search WorldCat catalog and books.google.com
  • Check SSRN, Legal Scholarship Network, and other repositories for forthcoming scholarship.

If your topic is one in a specific legal discipline or a quasi/non-legal discipline like economics or sociology, you should look for substantial treatment of the topic in those subject specific legal databases or  non-legal databases as well.

  • Use the UNM Library website to search for databases by subject using the drop down menu to find resources available to the entire university. 
  • Use the UNMSOL Library A-Z databases link and click on the "All Subjects" dropdown menu to refine by subject.

Search for annotations on your topic by searching in American Law Reports on Lexis or Westlaw

  • ALR annotations are useful because they explore the law of the jurisdictions that have dealt with the issue and reference cases on both sides of the issue. 
  • Annotations provide background, analysis, and citations not just to relevant cases, but also statutes, law review articles, and other annotations.

Another helpful resource which can also help you keep your research updated is WestClip, a Westlaw service that allows you to keep track of issues of interest to you. WestClip runs your Terms and Connectors queries on a regular basis and deliver the results to you automatically. You can conduct your preemption checking using a variety of Westlaw databases to track your issue and automatically notify you of developments that may affect it. You can create an entry using a particular search string that you found useful to have Westlaw run that search string periodically. 


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