Kara Sears
Noting up case law is an essential skill for law students and legal professionals. It involves verifying the history of a case to determine whether it has been overruled or reversed by a higher court and is still considered good law, reflecting current practice. This process ensures that legal research is robust and arguments are based on authoritative decisions. Various tools are available on legal databases such as LawSource, CriminalSource, and CanLII, to assist in noting up cases, such as KeyCite and Reflex. These tools help identify subsequent treatments of cases and how they have been cited. Additionally, when writing case notes, it is crucial to include relevant facts, procedural history, legal reasoning, and personal analysis.
| Characteristics | Values |
|---|---|
| Purpose | To determine if a case is "good law", i.e., reflecting current practice |
| Tools | KeyCite (LawSource, CriminalSource), CanLII, Westlaw, Lexis, Reflex |
| Steps | Navigate to the case, use the citator tool, verify the case history, determine if it has been overruled or reversed |
| Case Note Elements | Summary, analysis, argument, facts, procedural history, legal reasoning, rationale, personal comments |
| Considerations | Relevance, substantiation, clarity, length |
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What You'll Learn
Finding a case law to note up
Noting up a case is a two-part process that involves verifying the history of a case law to determine whether it has been overruled or reversed by a higher court and whether it is still considered "good law", i.e., reflecting current practice. It is essential to note up a case to ensure that it is still valid and to strengthen your legal research.
To find a case law to note up, you can refer to the following sources:
Legal Databases
Legal databases such as LawSource, CriminalSource, and CanLII include tools for noting up cases. For example, the noting up tool in LawSource and CriminalSource, called KeyCite, indicates how subsequent decisions have treated each case that they cite.
PACER
Court opinions are available for free on PACER to anyone with an account. PACER also provides access to federal case documents in real-time if you know the specific court the case was filed in. Case files may also be accessed from the public access terminals in the clerk's office of the court where the case was filed.
FindLaw
FindLaw offers a database of case law from the U.S. Supreme Court, U.S. Circuit Courts of Appeal, and several state supreme courts. It provides access to U.S. Supreme Court opinions, federal appellate court opinions, and state supreme, appellate, and trial court opinions.
Lexis Advance
In Lexis Advance, annotations are called Case Notes and are available as you scroll past the statutory text. Cases are divided by topic to help you find the most relevant cases for your issue.
Westlaw
In Westlaw, click on the Browse box, then select the West Key Number System. From here, you can search or browse the list of topics. If you click through to a digest document, you can select a different jurisdiction to search within that listing.
Secondary Sources
Secondary sources such as legal encyclopedias and the American Law Reports can be a great starting point for your research. Legal encyclopedias provide brief overviews of legal topics and may include case supplements that list a few pertinent cases. American Law Reports contain in-depth articles on legal topics, with each article providing a table of cases that breaks down relevant cases, statutes, and court rules across multiple jurisdictions.
MU Law Library's Resources
The MU Law Library offers resources for case law research, including the use of headnotes to find other relevant cases on a specific issue. Headnotes are short entries on legal issues found at the beginning of a case, and they provide links to additional cases on the same topic or key number.
Federal Court Cases Integrated Database (IDB)
The Federal Court Cases Integrated Database (IDB) provides case data (not documents) for criminal, civil, appellate, and bankruptcy cases, which can help researchers refine their requests.
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Using a tool to note up
Noting up a case law is necessary to ascertain whether a decision is still authoritative. It involves looking at a case's past and present status. This can be done by using case citators, which provide information on the case history, judicial treatment, and subsequent citing cases.
There are several tools available for noting up case law. One such tool is KeyCite, which is available on LawSource and CriminalSource. KeyCite is a powerful tool that indicates how subsequent decisions have treated each case that they cite (e.g. reversed, followed, etc.). It also provides links to the full text of citing cases. Another tool is Canadian Case Citations, which provides an alphabetical list of cases that have received judicial consideration, along with information on the history and treatment of each case.
Additionally, Westlaw International is an international online legal research tool that provides full-text access to case law, statutes, reports, journals, and law reviews, primarily with a focus on the United States. Westlaw also offers access to international materials, including Canadian cases, which note up automatically through KeyCite.
Another case citator is LawCite, which is particularly useful for searching for law journal articles or law reform reports referring to a particular case. CaseBase is another powerful and easy-to-use case citator, covering over 100 Pacific and international report series, journals, and unreported decisions from major Australian and New Zealand courts and selected tribunals. These tools can be invaluable for anyone looking to note up a case law and ensure that the information they are using is still authoritative and up-to-date.
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Summarising the case
Summarising a case is a critical step in case analysis and is paramount for attorneys and other legal professionals. It involves understanding how courts have previously considered similar situations, how they applied the law, and how they ruled upon it. These summaries help lawyers determine appropriate strategies, identify precedents, and point out potential weaknesses.
To summarise a case effectively, it is important to first understand all the parties involved and keep the facts straight. Highlighters can be used when going through notes to differentiate between different concepts. It is also essential to know which court decided the case, as this will determine whether the case is binding on the court you're practicing in. For example, if you're working on an issue pertaining to California law and find a relevant case decided by a Texas Appellate Court, this case is unlikely to be binding.
Additionally, it is crucial to verify if the case is still considered "good law", reflecting current practice. This involves checking if subsequent decisions have followed its precedent or if it has been overruled or reversed by a higher court. Google Scholar, for instance, provides a "How Cited" feature that allows users to see if a case has been overturned or received other negative treatment.
When summarising a case, it is also beneficial to review prior cases and opinions to understand how they may apply and stay up-to-date with any new case law or legislative law updates. This includes studying the facts of the case and how the relevant law applies. By doing so, legal professionals can form well-informed opinions that directly respond to the presented case and are easily understandable by the intended audience.
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Analysing the case
Analysing a case law begins with a thorough reading of the court's written opinion. It is important to identify the parties involved, who filed the original lawsuit, the decision at trial, and who appealed and why. It is also important to isolate the relevant facts and determine which parts of the story are relevant to the issue presented to the court. This will help you understand the legal issues at play and how the court's decision was made.
When analysing a case, it is important to keep in mind that legal opinions are written for other judges, not laypeople or even law students and attorneys. If you don't understand something, it may be helpful to look for other articles or media coverage about the case to gain a better understanding before returning to the legal opinion. Many cases also have summaries that can provide a helpful overview, but these should not be used as a substitute for reading the full case.
To deepen your analysis, try to identify the legal rules and principles that the court used to make their decision. Consider how the case fits into the existing legal landscape and how it might affect future decisions. You can also apply the legal rules established in the case to different scenarios and consider whether the outcome would be the same. This will help you understand the broader implications of the case and how it might be applied in other contexts.
Finally, it is important to consider your own position on the case. Do you agree or disagree with the court's decision and interpretation of the law? Why? Remember to substantiate your position with information from the case, and feel free to cite outside cases and legal scholarships to strengthen your argument. Your analysis should also address counter-arguments and potential weaknesses.
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Citing the case
Citing case law is an important skill to master for legal professionals and students alike. Here are some detailed instructions on how to cite case law effectively:
When citing a case, it is important to provide the necessary information to identify the case uniquely and accurately. The specific format may vary depending on the citation style guide you are using, such as The Bluebook or OSCOLA. Here is a general structure you can follow for citing a case:
Case Name: Start by providing the name of the case, which typically includes the names of the parties involved. For example, in the citation "Stearns v. Ticketmaster Corp.," the case name is "Stearns v. Ticketmaster Corp."
Volume and Report Abbreviation: Next, include the volume number and the abbreviation of the reporter or law report series where the case can be found. For example, in the citation "655 F.3d 1013 (9th Cir. 2011)," "655" is the volume number, and "F.3d" is the abbreviation for the Federal Reporter, Third Series.
Page Number: Include the page number where the case begins within the specific volume. In the example citation, "1013" is the page number.
Court and Year: Finally, provide the abbreviation of the court that issued the decision and the year the decision was made. In the example, "(9th Cir. 2011)" indicates that the decision was made by the United States Court of Appeals for the Ninth Circuit in the year 2011.
Additional Considerations
When citing case law, it is essential to be consistent in your citation format throughout your document. Ensure that you follow the guidelines provided by your institution or the specific style guide you are using.
It is also important to note that different jurisdictions may have their own citation formats and conventions. For example, European Court Reports (ECR) are cited for EU cases, and OSCOLA guidelines provide specific instructions for citing cases from England and Wales.
Citing Specific Passages
If you are citing a specific passage or paragraph within a case, you can use pinpoint citations. For example, " [42], [45]" at the end of a citation indicates that you are referring to paragraphs 42 and 45 of that case.
Using Quotations
When incorporating text directly from a case into your writing, it is generally best to use quotations. Quotes are typically a phrase or sentence in length, and you should aim to quote the relevant portion accurately and in context.
Citing Statute Provisions
Remember to cite statute provisions if they are relevant to your discussion. Statutes are a priority when citing case law, as they are the written laws established by legislative bodies. Ensure that you follow the appropriate format for citing statutes in your chosen style guide.
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Frequently asked questions
Noting up a case is the process of checking whether a case is considered to be "good law", i.e., reflecting current practice. This involves verifying the case's history to determine whether it has been overruled or reversed by a higher court.
Noting up is necessary to ascertain whether a decision is still authoritative and applicable. It helps ensure that your legal research is strengthened and that your argument is not based on outdated or overruled decisions.
Legal databases such as LawSource, CriminalSource, CanLII, Westlaw, and Lexis provide tools for noting up cases. LawSource and CriminalSource use the term "KeyCiting" for noting up, while CanLII's tool is called Reflex.
A case note typically includes a summary of the case, covering the facts, procedural history, and legal reasoning. It also includes an analysis of the case's significance, implications, and your opinion on the court's decision and interpretation of the law.
