Cecily Zamora
Determining whether a case is still good law is an important step in the legal research process. Case law, like legislation, can change over time, and a lawyer needs to be able to check whether a case has been subject to subsequent judicial consideration. To do this, you can use a citator service, such as Google Scholar, Westlaw, Lexis, or Bloomberg, to see if there are subsequent legal authorities that invalidate your case. You can then read those cases to understand how and whether they call your case into question. It is also important to remember that citators are fallible and that you need to take into account the jurisdiction of your case and the cases citing your case.
| Characteristics | Values |
|---|---|
| Subsequent History | Indicates whether a case was appealed, affirmed, or overturned |
| Subsequent Citations (Case Treatment) | Indicates how other cases have treated your case |
| Citator Services | Westlaw, Lexis, Bloomberg, Google Scholar |
| Symbols and Signifiers | Red flag/stop sign, yellow flag/triangle, orange box with "Q", etc. |
| Case Status | Reversed, overruled, superseded, disapproved, doubted, etc. |
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What You'll Learn
Check the subsequent history of the case
To check the subsequent history of a case, you can use citators such as Shepardizing on Lexis or KeyCiting on Westlaw. These tools indicate whether a case has been appealed, affirmed, or overturned. They also show how other cases have treated the case in question.
Shepard's Report, for example, includes tabs for 'Citing Decisions', which lists all the cases that cite your case, and 'Negative Treatment', which lists the cases that received negative treatment. Similarly, Westlaw's KeyCite Report includes tabs for 'Citing References', 'Negative Treatment', and 'History'. The 'Citing References' tab lists all the cases that cite your case, while the 'History' tab shows the evolution of the case by providing hyperlinks to prior and subsequent opinions.
It is important to note that the symbols and signifier phrases in citators, such as a red flag or a stop sign, only offer clues to how subsequent cases have treated your case. To fully understand the subsequent history, it is necessary to read the cases of concern and analyze how they have called your case into question, applied it, or distinguished it.
In addition to citators, you can also use online services such as Westlaw and Lexis+ to access "Case Analysis" and "Case Overview" documents, respectively. These documents provide information about where a case is reported, whether it has been judicially considered or referred to in later cases, and citations to other relevant cases.
By utilizing these tools and services, you can effectively check the subsequent history of a case and determine whether it is still considered good law.
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Review the case treatment
To check if a case is good law, it is important to review the case treatment. This involves examining how the case has been treated by other cases and courts, and whether it has been overruled, reversed, superseded, or distinguished.
There are several tools available to help with this process, including citators and case analysis documents. Citators, such as Shepard's on Lexis and KeyCite on Westlaw, provide information on how a case has been treated by other cases. They use symbols and flags to indicate the treatment, such as red flags for cases that are no longer good law, yellow flags for cases with negative treatment but not reversed or overruled, and blue flags for cases that have been appealed to a higher court.
Case analysis documents, such as those provided by Westlaw and Lexis+, offer information on where a case is reported, whether it has been judicially considered or referred to in later cases, and citations to other cases. The "Case Overview" document can help determine if a case can still be relied on as good law. Additionally, the "Appellate History" and "Key Cases Citing" sections indicate whether a case has been overruled, reversed, affirmed, or otherwise considered.
It is important to carefully read the cases that offer negative treatment and consider the specific issues being addressed. In some cases, a case may be reversed, overruled, or superseded only in part, or on an issue that is not relevant to the current case. Therefore, reviewing the case treatment involves analyzing the specifics of each case and determining the extent to which the previous case law applies or has been impacted.
By utilizing citators and case analysis tools, and carefully reviewing the treatment of a case by other cases and courts, one can effectively determine whether a case is still considered good law.
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Understand citator symbols
Citators are valuable tools that tell you what has happened to a law after it has been promulgated and what primary and secondary sources have cited the law. The two major online citation services are KeyCite (on Westlaw) and Shepard's (on Lexis). A third and more recent addition to the citation service options is Bloomberg Law's BCite.
Shepard's is the citation service offered through Lexis. Shepard's relies on a variety of symbols to act as visual cues regarding the status of cases, statutes, or regulations. Lexis calls its legal citator a Shepard's Report. A red Shepard's Signal™ indicator indicates that citing references in the Shepard's® Citations Service contain strong negative history or treatment of your case (e.g., overruled by or reversed).
KeyCite is the citation service offered through Westlaw. KeyCite relies on a variety of symbols to act as visual cues regarding the status of a case, statute, or regulation. Cases with a red flag or red stop sign may no longer be good law and should not be relied upon without doing further research. Similarly, cases with a yellow flag or yellow triangle should be used with caution because they may have been distinguished by other court rulings.
BCite is a citation analysis tool similar to KeyCite and Shepard's, which gives you links to all cases citing your case. BCite includes symbols that denote Positive, Distinguished, Caution, Superseded by Statute, and Negative references. BCite's Indicators exist at both the "Composite Analysis" and "Case Analysis" levels.
As a general rule, in either Westlaw or Lexis, cases with a red flag or red stop sign may no longer be good law and should not be relied upon without doing further research. If the negative symbol results from Case Analysis, one or more courts have overruled the opinion in full or in part or stated that the opinion has been overruled in full or in part by a previous decision.
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Validate your research
To validate your research, you must review the citator report to see if your case was reversed, overruled, or superseded. It is also possible that your case could be so roundly criticized or so thoroughly distinguished by other cases that you may not want to rely on it. To determine the validity of your case, you must review those cases that offer negative treatment of your case.
There are several types of negative treatment. Cases that have been reversed, overruled, or superseded are no longer good law and typically should not be relied upon. However, sometimes cases are simply reversed, overruled, or superseded in part, or the issue on which the case was reversed/overruled/superseded is not the issue for which you are using the case. In those circumstances, you may decide that you can, in fact, cite the case. The only way to determine the extent to which you can rely upon a reversed/overruled/superseded case is to carefully read the cases that indicate negative treatment.
These types of negative treatment tend not to invalidate your case, but you should still evaluate these negative treatment cases to see if they compromise your reliance on the original case. For example, there might be a case that distinguishes your original case, and the distinguishing case is more factually similar to your issue than the original case. In that circumstance, you probably would not want to rely on the original case. Accordingly, when you see references to cases that include this kind of negative treatment that does not tend to invalidate your case, you should read the cases to determine the extent to which you want to rely on your original case. Sometimes there are so many of these kinds of negative treatment cases that it is impractical to read them all. Some tips for narrowing the quantity of cases that you must read include focusing on cases:
- With similar facts to your case
- That are more recent
- From the same jurisdiction
- That are higher court decisions
There are two main case law citators to verify the status of your case: on LexisNexis, it is Shepards, and on Westlaw, it is KeyCite. KeyCiting and Shepardizing are also a method for finding other cases and secondary sources relevant to your topic. There are differences between the citator symbols used by Westlaw and Lexis, but as a general rule, in either Westlaw or Lexis, cases with a red flag or red stop sign may no longer be good law and should not be relied upon without doing further research. Similarly, cases with a yellow flag or yellow triangle should be used with caution because they may have been distinguished by other court rulings.
Remember, you need to take into account the jurisdiction of your case and the cases citing your case to determine if your case is still good law. A red octagon, for instance, indicates strong negative treatment.
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Review negative treatment cases
To check if a case is good law, it is imperative to review negative treatment cases. This can be done by using citators such as Shepard's on Lexis or KeyCite on Westlaw. These tools provide information on the subsequent history and citations of a case, including negative treatment by other cases.
When reviewing negative treatment cases, it is important to carefully read the cases that offer negative treatment. This involves examining the specific reasons and contexts in which the original case was negatively treated. For example, a case may have been reversed, overruled, or superseded by subsequent cases, rendering it no longer good law. In some instances, a case may be so strongly criticized or distinguished by other cases that it loses its reliability.
The negative treatment of a case can be identified through various indicators and flags in the citators. For instance, a red flag or a red stop sign in KeyCite or a red Shepard's Signal in Shepard's typically indicates that a case is no longer good law for at least one point. A yellow flag or triangle, on the other hand, signifies negative treatment but the case has not been reversed or overruled. It is important to note that these flags and indicators may vary slightly between Westlaw and Lexis.
To access the negative treatment information, users can refer to the "Negative Treatment" or "History" tabs in KeyCite and Shepard's. These tabs provide detailed reports and summaries of the negative history and citing references. Additionally, users can narrow their results to only show the most negative treatment, making it easier to identify the relevant information.
By reviewing negative treatment cases and understanding the subsequent history and citations, legal professionals can determine the validity and reliability of a case as good law. This process ensures that the legal research is thorough and up-to-date, enabling informed decision-making and representation in the courtroom.
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Frequently asked questions
There are several ways to check if a case is good law. You can use a citator service such as Google Scholar, Bloomberg Law, or LexisNexis, which will allow you to see if there are any subsequent legal authorities that invalidate the case in question. You can also check the subsequent history of the case and its subsequent citations.
Some reliable citator services include Shepard's on LexisNexis and KeyCite on Westlaw. These services provide indicators, such as red flags or stop signs, to suggest that a case may no longer be good law. However, these indicators are not always accurate, and further research is often required.
Indicators that a case may no longer be good law include being reversed, overruled, superseded, or disapproved by a higher court. Additionally, negative treatment by other cases, such as criticism or distinction, may suggest that a case is no longer considered good law.
