Keith Mack
Determining whether a case is still good law requires checking the subsequent history of the case and its subsequent citations to see how other cases have treated it. This can be done by using citators such as Shepardizing on Lexis or KeyCiting on Westlaw. While citators can provide clues to how subsequent cases have treated a particular case, it is important to actually read the cases in question to understand how they have called the original case into question. To view how other cases have treated a particular case, one can click on the Citing Decisions tab and filter the citing decisions by treatment or depth of discussion.
| Characteristics | Values |
|---|---|
| Subsequent History | Indicates whether the case was appealed, affirmed, reversed, overruled, superseded, or distinguished. |
| Subsequent Citations (Case Treatment) | Indicates how other cases have treated the original case. |
| Citing References | Lists all cases that cite the original case. |
| Negative Treatment | Lists cases that received negative treatment. |
| Depth of Discussion | Indicates the extent to which the subsequent cases have treated the original case. |
| Headnotes | Indicates which headnotes in the original case contain the points of law discussed by the citing cases. |
| Citator Services | Westlaw, Lexis, Bloomberg, and Shepard's all offer citator services to determine if a case is still good law. |
| Citator Symbols | Red flags or stop signs may indicate a case is no longer good law. Yellow flags or triangles indicate caution. |
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What You'll Learn
Check for subsequent history
To determine whether a case is still good law, it is essential to check the subsequent history of the case. This can be done by using citators such as Shepardizing on Lexis or KeyCiting on Westlaw. Subsequent history reveals whether a case was appealed and later overturned or affirmed.
Citators employ symbols and phrases to indicate how subsequent cases have treated a particular case. For instance, a red flag or stop sign symbol may suggest that a case is no longer good law. However, these indicators only provide clues, and it is necessary to read the subsequent cases to understand their treatment of the original case. It is worth noting that a case may be deemed bad law due to a different issue or because it was unpublished.
Online services like Westlaw and Lexis offer functions to help check the status of a case. Westlaw's "Case Analysis" documents and Lexis+'s "Case Overview" documents provide information about whether a case has been judicially considered or referred to in later cases. Additionally, citator services like Westlaw, Lexis, and Bloomberg can be used to validate case research by identifying subsequent legal authorities that may invalidate a case.
To access the subsequent history of a case on Westlaw, click on the History tab. The Citing Decisions tab will show how other cases have treated the original case. Similarly, on Lexis, indicators appear next to the case name, signalling whether it is still considered good law. A red stop sign, for example, suggests that a case may have been overruled or reversed.
In summary, checking the subsequent history of a case involves using citators, understanding their symbols and indicators, and reviewing how later cases have treated the original ruling. This process ensures that lawyers can determine whether a case is still considered good law.
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Review citator reports
To determine whether a case is still good law, you need to review citator reports. Citators are used to check the subsequent history of the case and its subsequent citations to see how other cases have treated your case.
Citator reports will include a list of all the cases that cite the case in question, organised by date, jurisdiction, and depth of treatment. For example, Lexis' legal citator is called a Shepard's Report, and Westlaw's citator is called KeyCite. Both provide a list of all the cases that cite the case in question.
Citator reports will also include information on the negative treatment of the case, i.e., instances where the case has been treated negatively in other courts. For example, a red Shepard's Signal™ indicator means that the case has received strong negative treatment, whereas a blue indicator means that the case has received citing references, but no history or treatment analysis. KeyCite also provides a report of all the instances that a case has been treated negatively in other courts.
Citator reports may also include information on the evolution of the case, providing hyperlinks to prior and subsequent opinions.
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Understand flags and symbols
Flags and symbols are essential indicators in legal research, helping to quickly identify the status of a case and whether it is still considered good law. Understanding these symbols is crucial when researching case law.
Flags and Symbols:
- Red Flags: A red flag is a strong indicator that a case may no longer be good law and should not be relied upon without further research. It suggests that the case has been negatively treated, for example, it may have been overruled, reversed, or superseded. However, it is important to note that a red flag does not always mean the entire case is bad law; it could be related to a specific issue or point of law within the case.
- Yellow Flags: A yellow flag is a common symbol indicating that a case has negative references but has not been reversed, overruled, or superseded. It serves as a cautionary sign, suggesting that the case should be used with caution. It is important to understand the cases that contributed to the yellow flag and their impact on the precedential value of the flagged case.
- Red-Striped Flags: These flags indicate that a case has been partially overruled. They provide access to the specific language within the case that addresses the overruled point of law.
- Blue-Striped Flags: Blue-striped flags signal that a case has been appealed to a higher court, such as the U.S. Court of Appeals or the U.S. Supreme Court.
- Shepard's Signals™: These signals are used by Lexis and provide information about the procedural context of a case, including the levels of courts involved. A yellow triangle Shepard's Signal™ indicates possible negative treatment, but it does not necessarily affect the case's value as precedent.
- KeyCite Overruling Risk: This icon alerts you to the possibility of implicit negative treatment of a case. It indicates that the case relies on another case that has been overruled, even if the case itself has not been directly overruled.
- Other Symbols: Different citators, such as Bloomberg Law's BCite, may use additional symbols like "Positive," "Distinguished," "Caution," "Superseded by Statute," and "Negative" references.
It is important to remember that while these flags and symbols provide valuable guidance, they are not always definitive. It is essential to review the specific cases and their contexts to fully understand their status and whether they are still considered good law.
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Review negative treatment
Reviewing negative treatment is a crucial step in determining whether a case is still good law. Negative treatment refers to situations where a court has criticized, limited, or declined to follow a precedent. This can indicate that the precedent may no longer be valid or its scope has been restricted.
When reviewing negative treatment, it is important to carefully analyze the reasoning and context of the criticizing court. First, identify the specific aspects of the precedent that were criticized. This may involve a disagreement with the legal analysis, factual application, or policy considerations underlying the original decision. Understanding the precise points of contention will help in assessing the ongoing value of the precedent.
Secondly, consider the strength and tone of the negative treatment. Negative treatment can range from subtle distinctions to explicit rejection. A court may distinguish a precedent by finding that it applies only in a narrow set of circumstances, effectively limiting its scope. In other cases, a court may expressly overrule or reject the precedent, indicating a more fundamental disagreement. The tone and language used by the court in its criticism can provide insights into the strength of the negative treatment.
Additionally, it is important to evaluate the authority and influence of the criticizing court. Negative treatment from a higher court within the same jurisdiction will carry more weight and may signal a stronger indication that the precedent is no longer good law. Similarly, if multiple courts have negatively treated a case, it could suggest a broader trend of disapproval. However, even a single instance of strong negative treatment from a respected court can significantly undermine the precedential value.
The context and timing of the negative treatment also play a role in the analysis. Legal principles and societal values evolve over time, and a precedent that was once widely accepted may become outdated or inconsistent with current legal thinking. Negative treatment that reflects changing societal norms or interpretations of the law can indicate a shift in the precedent's ongoing applicability.
Lastly, it is essential to cross-reference the negative treatment with other sources and commentaries. Academic articles, legal journals, and treatises can provide valuable insights into the ongoing relevance of a case. These sources may offer critical analysis, highlighting nuances or conflicting interpretations that arise from the negative treatment. Additionally, they can help identify broader trends or patterns of criticism, providing context for the ongoing weight and authority of the precedent in question.
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Check citing references
To check whether a case is still good law, you need to validate your research by running it through a citator service. Citator services include Shepard's (LexisNexis), KeyCite (Westlaw), and BCite (Bloomberg Law). These citator services will provide a report on the subsequent history and citations of a case, indicating whether it has been negatively treated by other cases, overruled, reversed, affirmed, or otherwise considered.
For example, on LexisNexis, the discussion bars indicate the extent to which a case has been discussed by a subsequent case: analysed (4 bars), discussed (3 bars), mentioned (2 bars), or cited by (1 bar). On Westlaw, there are tabs for 'History', 'Negative Treatment', and 'Citing References'. A red, yellow, or blue striped flag next to a case name may indicate that it has been negatively treated.
However, it is important to note that these citator services are fallible and should not be solely relied upon. You must also read the cases that negatively treat your case to determine the extent to which you can rely upon it.
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Frequently asked questions
You can use a citator service like Shepard's, LexisNexis, Westlaw, or Bloomberg to check the subsequent history of the case and see how other cases have treated it.
A citator service will flag cases that are no longer good law, and you can use it to see if there are any subsequent legal authorities that invalidate your case.
You can use a citator service by running your case through it and reading any cases that negatively impact your case.
The flags indicate whether a case has been negatively treated. A red flag means a case is no longer good for at least one point of law, a yellow flag means a case has some negative treatment but has not been reversed or overruled, and a blue striped flag means a case has been appealed to a higher court.
