Academic Legal Writing - Eugene Volokh [49]
d. Try to find even as yet unpublished pieces on the subject, by searching the Social Science Research Network database and the Bepress Legal Repository. These databases don't include all unpublished articles, and some of the articles in them have already been published. But the search will let you search through at least some unpublished articles on your subject.
Some of these articles might be useful in your research; and if one does indeed preempt the topic you're thinking about, better learn it now than when the article is published six months from now. Limit your search to the last year or two, though, so you won't find lots of articles that are already published and that you've already found using your Westlaw or Lexis search.
4. Identify how the articles you find are relevant
Here's a message from a then-law-student (my sister-in-law Hanah Metchis Volokh) that captures what many, including me, have suffered from:
[N]ear the beginning of my research after getting an idea for a paper, I think that any published paper that has ever touched on the issue I want to discuss is preempting me.
So, for example, I got the idea for the paper I'm currently writing: The congressional immunity statute violates separation of powers. I went to Westlaw and ran a JLR search for “congressional investigation” & “separation of powers”. Something like 20 papers popped up. PANIC! Everyone has written about this already! I'd better come up with a new topic.
It wasn't until a few days later that I thought to print out some of those papers and see what they actually said. It turned out many were not very relevant to my idea at all. But then I came across one, this Sklamberg article, that had exactly the Chadha/Bowsher analysis I was going to do. PANIC! I've been scooped! I'd better come up with a new topic.
It was probably a full week after reading the paper when I finally realized that since Sklamberg drew the opposite conclusion from me, I could still write the paper—and in fact, that it's a lot easier to write a paper if you have someone to disagree with.
This panic is a perfectly understandable reaction. There are hundreds of thousands of law review articles out there. Most of us have a nagging fear that surely someone has already done what we're trying to do, and done it better. That's especially so when we're just starting our legal careers. We forget that nearly all the articles are about other topics; that articles touching on the topic often mention it only in passing; and that articles discussing the topic may have a different view than ours—or just may not be very good. So we panic.
There are also two reverse problems, though. First, we may so worry about preemption that we don't do a serious literature search, or do it too late. Bad idea. If you don't find the other literature on the subject at the outset, you're likely to run into it eventually, or your advisor will identify it, or the law review editors will.
Better find the other works on the subject at the outset. That's when it's easiest for you to shift your own claim to avoid the past articles (see Part I.C, pp. 21-23 above, for more on that). And that's when it's easier to incorporate the arguments from the past articles as counterarguments for your own work to deal with.
Second, we may under- or overestimate the importance of the articles we're reading, or even just misunderstand their thrust, because we're afraid and aren't reading as calmly and thoughtfully as possible.
So set aside your worries. See the literature search as primarily a device for refining your claim, not for deciding whether to throw out your claim and shift