Before you set yourself with a thesis for your note or comment, you need to ensure that no other scholars have already used the same or exceptionally similar thesis. A note or comment must explore a novel idea. The process of discovering whether a scholar has already explored your idea is commonly known as preemption checking.
Generally speaking, a preemption check is when you scour the scholarly universe to make sure that your idea is, in fact, novel. But the process is useful beyond its initial goal. For instance, you can use the works that you find, and the arguments within them, to help you clarify and define your thesis. Further, much of what you find during a preemption check will likely be similar enough to your topic that you can use those works as citations to strengthen your argument. Preemption checking is is also really your first pass at collecting resources to define and support your thesis.
This guide will point you to the resources you need and provide tips and tricks to fully perform your preemption check. You may be used to using Westlaw and Lexis for legal and academic research, and those are great places to check. But those databases only hold a fraction of the materials that make up the scholarly universe.
A proper preemption check requires you to search many different databases because the various databases cover different content. Searching a variety of databases ensures that you are doing a thorough check. Follow these simple steps to conduct a thorough preemption check.
Consider all the terms and phrases that you would find in documents related to your topic. You may want to use a legal thesaurus to identify alternative words used to describe your topic. You can access Burton's Legal Thesaurus on Lexis, or if you prefer, look at the print version on the 4th floor library. You can also use Westlaw's built-in thesaurus by opening advanced search, adding terms to the "any" or "all of these terms" fields, and clicking the thesaurus button below those fields.
Once you start your preemption check, you might notice terms of art or other language patterns used to describe your topic. You may need to revise your preemption check searches to account for any alternative terms.
To keep track of your preemption check searches, keep a running list of the search terms. You should also maintain a record of all journal article citations in your search results that you feel need further investigation. It may be worth your while to learn how to use a citation management tools like Zotero or Mendeley.