Cecily Zamora
Shepard's Citations is a citator used in United States legal research that provides a list of all the authorities citing a particular case, statute, or other legal authority. The process of consulting Shepard's to see if a case has been overturned, reaffirmed, questioned, or cited by later cases is known as Shepardizing. The name derives from a legal service begun by Frank Shepard in 1873, when Shepard began publishing these lists in a series of books indexed to different jurisdictions. While print versions of Shepard's remain in use, their use is declining in favour of online versions. Shepardizing is important because a citation must be reliable, and lawyers and judges rely on previously decided cases to support their arguments or opinions. If the case cited is no longer good law, reliance on the case is faulty.
| Characteristics | Values |
|---|---|
| Purpose | To verify that a case is still "good law"To check the validity and history of court opinions, statutes, and other legal materials |
| Format | Hardcover booksSoftcover supplement volumesOnline |
| Usage | Used in United States legal researchUsed by lawyers and judges to support their arguments or opinions |
| Symbols | Red – a case has been overturned or reversedYellow – a case may have been distinguished or criticized |
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What You'll Learn
'Shepardizing' a case
"Shepardizing a case" refers to the process of using a citator to determine whether a case is still considered ""good law". It involves verifying whether a case has been overturned, reaffirmed, questioned, or cited by later cases. This process is essential for lawyers when citing cases to support their arguments, ensuring that the cases they reference remain valid and have not been subsequently revised or overturned.
Shepardizing a case typically involves the following steps:
- Conduct an advanced search: Begin by accessing a legal database, such as Westlaw or LexisNexis Academic, and perform an advanced search for the specific case you want to Shepardize. You can search by case name or citation.
- Examine treatment levels: After locating the case, look for any indicators or symbols denoting the treatment levels. For instance, a yellow symbol might suggest caution, indicating that the case law has been questioned or interpreted differently in other court decisions.
- Review citing references: Under the case information, you will find a list of citing references. These references indicate other cases that have cited or discussed the case you are Shepardizing. They can include parallel cites, where the same case is published by different publishers.
- Analyze subsequent history: Click on the "Subsequent Appellate History" link to view a chart or graphic representation of the case's appellate history. This will show you if the case has bounced between different appellate courts and whether there have been any reversals or modifications.
- Check for negative treatment: Look for tabs or sections labeled "Negative Treatment" or "History." These sections will provide information on whether the case has been overruled, superseded, or otherwise negatively treated by subsequent cases.
- Explore citing opinions: Pay attention to citing opinions that disagree with the reasoning or result of the case you are Shepardizing. Note the citations of cases that criticize, reverse, or modify the case you are analyzing.
- Verify "good law" status: Ultimately, Shepardizing helps determine whether the case is still considered "good law." "Good law" means that the case has not been reversed on appeal, overruled, superseded, or criticized by later cases.
- Consider secondary sources: Optionally, you can click on the "Citing References" tab and explore the Secondary Sources options to find out if any law review articles or other secondary sources have discussed the case.
- Utilize KeyCite: If using Westlaw, take advantage of KeyCite, a similar product to Shepard's, which provides information on negative treatment, history, and citing references.
Shepardizing a case is a crucial step in legal research, ensuring that lawyers and judges rely on valid and up-to-date precedents when making their arguments and decisions.
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The history of case law
Case law, also used interchangeably with common law, is a law based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. It is used for judicial decisions of selected appellate courts, courts of first instance, agency tribunals, and other bodies discharging adjudicatory functions. In the common law tradition, courts interpret statutes and apply precedents that record how and why prior cases have been decided.
Common law systems are usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt and the Francophone countries of the Maghreb and West Africa. Common law systems give more weight to the separation of powers between the judicial branch and the executive branch, while civil law systems are more tolerant of allowing individual officials to exercise both powers.
Common law systems are historically documented in collections of case law referred to as yearbooks and law reports. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. Newer states often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law. The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874.
In the past, common law courts relied little on legal scholarship. Thus, at the turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision. Today, academic writers are often cited in legal arguments and decisions as persuasive authority. Judges may refer to various types of persuasive authority to decide a case, including widely cited non-binding sources such as legal encyclopaedias, the published work of the Law Commission, or the American Law Institute.
The doctrine of stare decisis, a Latin phrase meaning "let the decision stand", is the principle by which judges are bound to past decisions. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts. For example, in England, the High Court and the Court of Appeals are each bound by their own previous decisions. However, higher courts do not have direct oversight over lower courts of record, and normally the burden rests with litigants to appeal rulings to higher courts. If a judge acts against precedent, and the case is not appealed, the decision will stand.
Shepard's Citations is a citator used in United States legal research that provides a list of all the authorities citing a particular case, statute, or other legal authority. The term "Shepardizing" refers to the process of consulting Shepard's to see if a case has been overturned, reaffirmed, questioned, or cited by later cases. Shepard's Citations was begun by Frank Shepard in 1873, when he began publishing lists of legal authorities in a series of books indexed to different jurisdictions.
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Statutory law vs. case law
Case law, also referred to as "common law", is established in court rulings, whereas statutory law is created by a legislative body and written in specific statutes. Case law refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. Precedent plays a crucial role in developing new case law, as judges consider prior case law on the same or similar issues when listening to or reading an argument.
Statutory laws are laws passed by the legislature on different levels of government, such as local, state, and/or federal. They are found in two types of publications: compilations of statutes or codified laws. Statutes can be overturned under specific circumstances, such as if they are found to be unconstitutional.
Shepard's Citations is a citator used in United States legal research that provides a list of all the authorities citing a particular case, statute, or other legal authority. The process of consulting Shepard's to see if a case has been overturned, reaffirmed, questioned, or cited by later cases is called "Shepardizing". Shepardizing is important because it verifies that a case is still "good law" and helps ensure that a citation is reliable.
While both case law and statutory law are crucial to the legal system, they differ in that case law is established in court rulings, while statutory law is created by a legislative body and written in specific statutes.
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The role of precedent
Shepard's Citations, named after their founder Frank Shepard, is a citator tool that helps lawyers and judges determine if a case or statute has been overturned, reaffirmed, questioned, or cited by later cases. This process, known as Shepardizing, is essential for verifying the validity and history of court opinions and ensuring that the precedent being relied upon is still considered ""good law." The term "good law" refers to cases that have not been reversed on appeal, overruled, superseded, or criticized by later cases.
Shepardizing involves consulting Shepard's Citations to find all the authorities that cite a particular case or statute. Before the advent of electronic citators, lawyers and law clerks had to manually locate the relevant Shepard's entry, decipher abbreviations, and retrieve cases that overruled or criticized the case in question. Now, with electronic citators like Shepard's Citation Service and Westlaw's KeyCite, this process has become much more efficient and user-friendly.
Shepard's Citations provide a comprehensive analysis of case law, statutes, regulations, and administrative decisions. They offer exclusive graphical options that display citing decisions in a grid view, making it easier to spot trends across courts and time periods. This bird's-eye view helps identify splits of authority, where a case is overruled in part but followed on separate points of law. This information is invaluable for attorneys and judges who need to ensure their cases are built on solid precedential ground.
In conclusion, the role of precedent in the legal system is fundamental to maintaining consistency and fairness in judicial decisions. Shepard's Citations play a crucial role in this process by providing a reliable tool for verifying the validity and precedential value of cases and statutes. By Shepardizing, lawyers and judges can ensure they are relying on accurate and up-to-date precedents, contributing to the integrity and stability of the legal system.
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The process of creating statutory law
Statutory law, also known as statutes, is created and passed by the legislative branch of the government. They are written laws that can be found in databases or books and are often codified, numbered, collected, and indexed in one place. The process of creating statutory law typically involves the following steps:
The legislative process begins with the introduction of a bill in the legislature. This can happen in either chamber of the legislative branch, such as the House of Commons or the Senate. Once a bill is introduced, it undergoes a series of readings and committee stages before being voted on.
First and Second Readings
During the first reading, the bill is introduced and given a title. The second reading involves a more detailed examination of the bill, where it is debated and discussed by members of the legislature. Amendments may be proposed and voted on during this stage.
Committee Stage
The bill is then referred to a committee, which is a smaller group of legislators who review the bill in more detail. The committee may hold hearings, invite experts, and make further amendments to the bill.
Report Stage
After the committee stage, the bill returns to the full legislature for the report stage. This is where the committee's findings and any additional amendments are presented to the entire legislative body.
Third Reading
The third reading is the final stage before a vote is taken. It involves a final debate on the bill and any remaining amendments. If the bill is amended during this stage, it may need to go back to previous stages for further review.
Vote and Passage
After the third reading, the bill is put to a vote. If it receives a majority of votes in favour, it is considered passed by that chamber. In a bicameral legislature, the bill must then go through a similar process in the other chamber. If both chambers pass the bill, it moves on to the next step.
Royal Assent or Executive Signature
In some countries, the final step in the process is obtaining Royal Assent, which is granted by a representative of the Crown, such as the Governor General. In other cases, the bill is signed into law by the executive, such as the President or Governor, depending on the level of government (federal or state).
Veto and Override
In rare circumstances, the executive may veto the bill, refusing to sign it into law. However, this can be overridden by the legislature with a two-thirds majority vote.
It is worth noting that statutory law can also originate from common law or administrative law. In such cases, a judge's ruling or interpretation of the law may be officially written down and passed by a legislative body, becoming a statute. Additionally, statutory laws can become outdated or obsolete over time, leading to a long and involved process of change.
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Frequently asked questions
Shepard's Citations is a citator used in United States legal research that provides a list of all the authorities citing a particular case, statute, or other legal authority.
One significant purpose of Shepardizing is to verify that a case is still "good law". The term is based on a legal citation service created by Frank Shepard in 1873 and published in volume form in the early 20th century.
"Good law" means that the cases have not been reversed on appeal, overruled, superseded, or criticized by later cases. "Bad law" means that the citing case reverses the case being Shepardized on appeal, reconsideration, or rehearing.
