--- name: hlr-preemption-check description: Use when verifying that a Harvard Law Review (HLR) argument has not already been made — the law-review "preemption check" run across SSRN, Westlaw/Lexis, HeinOnline, and Google Scholar BEFORE drafting. Confirms originality and refines the claim; it does not draft the thesis (hlr-thesis-and-contribution) or the literature engagement in the body. --- # Preemption Check (hlr-preemption-check) In legal scholarship, **"preemption"** means: has someone already published your argument? Running this search **before** you write is the single highest-return habit in the field — discovering that your claim appeared in a 2024 article *after* you have drafted 25,000 words is the classic wasted summer. A clean preemption check both protects originality and sharpens your contribution against the nearest prior work. ## When to trigger - You have a candidate thesis and have not yet written the body - You are about to claim "no one has argued X" or "first to address Y" - A draft is done and you want to confirm nothing close appeared while you wrote - An editor or colleague says "isn't this just [Author]'s point?" ## Where to search (run all four; do not stop at one) | Source | What it catches | Note | |--------|-----------------|------| | **SSRN / bepress** | Working papers and forthcoming articles not yet in print | Catches the most recent, still-in-press work — the highest preemption risk | | **Westlaw / Lexis** journals databases | Published law-review articles, full text | Use field-restricted and date-restricted queries | | **HeinOnline** | Deep historical law-review archive, PDF page images | Best for older and exact-pinpoint history of an idea | | **Google Scholar** | Cross-disciplinary and gray-literature reach | Catches non-law work and citation chains | ## How to search well 1. **Search the claim, not just the topic.** Anyone can find articles on "qualified immunity"; search the *specific move* — e.g., "qualified immunity" + "common-law indemnification" + your distinctive hook. 2. **Vary vocabulary.** Authors name the same idea differently; run synonyms and the doctrinal terms of art, not only your coinage. 3. **Date-bound and re-run.** Restrict to the last 2-3 years for in-press risk, then re-run the search right before submission — SSRN updates daily during the seasons. 4. **Follow the citation web.** When you find the nearest neighbor, read what it cites and what cites it. 5. **Read the abstracts and intros**, not just titles — preemption hides in the framing, not the keyword. ## Reading the result (three outcomes) - **Genuinely new** → state originality precisely and cite the nearest neighbors as the literature you advance (hand to `hlr-argument-structure` for engagement). - **Partially preempted** → refine the claim to the part that remains open; recast the contribution ("prior work shows A; this piece shows the stronger/different B"). Loop `hlr-thesis-and-contribution`. - **Fully preempted** → change the claim or the angle before investing in the draft. Better now than after. ## Checklist - [ ] Searched SSRN, Westlaw/Lexis, HeinOnline, and Google Scholar — not just one - [ ] Searched the specific *argument*, with synonyms and terms of art, not only the topic - [ ] Found and read the 3-5 nearest-neighbor pieces (intros + abstracts) - [ ] Stated exactly how the claim differs from each nearest neighbor - [ ] Date-restricted pass for in-press work; plan to re-run before submission - [ ] Any "first to" language is backed by the search, or removed ## Anti-patterns - Searching only the topic ("free speech") instead of the argument — everything looks preempted or nothing does - Relying on a single database (especially skipping SSRN, where in-press preemption lives) - Searching once, months before submission, and never re-running - Hiding the nearest competitor instead of citing and distinguishing it - Keeping a "first to address" claim the search cannot support ## Preemption is not the same as the literature review A preemption check protects **originality**: has *this argument* been published? The literature review in the body does different work — it situates the claim among the scholarship a generalist editor expects you to engage (handled inside `hlr-argument-structure`). The same searches feed both: the nearest neighbors you find here become the works you distinguish in the body. Do not let a clean preemption result excuse a thin literature engagement, and do not let a thorough literature review substitute for the targeted, claim-level preemption search — they answer different questions. ## Worked micro-pattern (illustrative) A hypothetical author plans to argue that a doctrine *D* should be abolished. A topic-level search for "*D*" returns hundreds of hits and feels hopeless. Re-running the search at the **argument** level — "*D*" + "abolition" + the distinctive ground the author relies on — surfaces only two close pieces: one argues for *narrowing* D (not abolishing it), the other abolishes D on *different* grounds. The verdict is **partially preempted**: the claim survives, recast as "prior work narrows D or abolishes it on ground X; this Article abolishes it on the stronger ground Y." The contribution is now sharper *because* of the search. (Counts and grounds illustrative.) ## Output format ``` 【Claim searched】the specific argument (not the topic) 【Databases】SSRN / Westlaw-Lexis / HeinOnline / Scholar [all run? Y/N] 【Nearest neighbors】the 3-5 closest pieces (author, year, the move they make) 【Verdict】new / partially preempted / preempted 【Refinement】how the claim now differs from each neighbor 【Next】hlr-argument-structure (if new) or hlr-thesis-and-contribution (if recast) ``` ## Supplementary resources - [`../../resources/external_tools.md`](../../resources/external_tools.md) — SSRN, Westlaw, Lexis, HeinOnline access notes - [`../../resources/official-source-map.md`](../../resources/official-source-map.md) — sourcing discipline for originality claims