2.3 Shepardizing and Updating Case Law
5 min read•august 15, 2024
Shepardizing is crucial for verifying case law's current status and treatment. It helps researchers ensure they're relying on valid and understand how courts have interpreted legal principles over time.
Using tools like , researchers can quickly assess a case's validity and impact. By analyzing symbols, editorial analysis, and citing cases, they gain a comprehensive view of legal developments and find additional supporting authorities.
Shepardizing in Legal Research
Purpose and Importance
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- Shepardizing is the process of using Shepard's Citations, a legal citator, to determine the current status and treatment of a case
- Allows researchers to verify if a case is still good law and has not been overturned, reversed, or otherwise negatively treated by subsequent court decisions
- Helps identify later cases that have cited, criticized, or followed the original case, providing insight into how courts have interpreted and applied the legal principles from the original case
- Ensures reliance on valid, up-to-date case law and understanding of the development and current state of the legal issues involved
- Essential for thorough legal research to avoid relying on outdated or invalid precedent (overruled cases)
- Provides a comprehensive picture of a case's judicial history and impact on subsequent
Process and Tools
- Shepard's Citations is the most well-known legal citator, available through
- Other citators include () and BCite (Bloomberg Law)
- Researchers enter the citation of the case they wish to Shepardize into the citator database
- The citator generates a report listing all subsequent cases that have cited the original case, along with symbols and editorial analysis indicating the nature of the treatment
Interpreting Shepard's Symbols
Treatment Indicators
- Shepard's uses a system of symbols and abbreviations to indicate the treatment of a case by subsequent court decisions
- Key Shepard's symbols include:
- Overruled (red hexagon): The citing case has expressly overruled the original case, rendering it no longer valid precedent
- Questioned (blue Q): The citing case has questioned the continuing validity or precedential value of the original case without explicitly overruling it
- Caution (yellow triangle): The citing case has limited, distinguished, or criticized the original case, suggesting it may not apply in all circumstances
- Positive treatment (green square): The citing case has followed, affirmed, or favorably cited the original case, reinforcing its precedential value
- Symbols appear next to the citing case in the Shepard's report, allowing researchers to quickly assess the treatment
Editorial Analysis
- In addition to symbols, Shepard's provides editorial analysis summarizing the court's treatment of the original case
- Identifies relevant quotations or key points from the citing case that discuss the original case
- Helps researchers understand the context and reasoning behind the citing case's treatment without reading the full opinion
- Editorial analysis is written by LexisNexis attorneys and serves as a helpful guide, but researchers should still review the citing case for a complete understanding
Case Validity and Treatment
Assessing Current Validity
- Citators, like Shepard's or KeyCite, provide a comprehensive report of a case's history and treatment, including direct appellate history and subsequent citing decisions
- Researchers should review the entire citator report to assess the overall treatment of the case and determine if it remains valid, controlling precedent
- , such as overruling (red hexagon) or questioning (blue Q), may indicate that the original case is no longer reliable authority for the legal propositions it stands for
- Distinguishing treatment (yellow triangle) suggests that the original case's holding or reasoning may not apply to factually different situations in subsequent cases
- Positive treatment (green square), such as following or affirming, strengthens the precedential value of the original case
Analyzing Treatment in Context
- Researchers should carefully analyze the facts, reasoning, and holdings of both the original and citing cases to determine the extent and impact of the treatment
- Negative treatment may be limited to specific factual scenarios or legal issues, leaving other aspects of the original case intact
- Distinguishing treatment may highlight important factual differences that limit the applicability of the original case without undermining its core holding
- Positive treatment may reinforce the original case's precedential value for certain propositions while leaving other aspects open to interpretation
- Thorough analysis of the citing cases is necessary to fully understand the current status and scope of the original case's authority
Subsequent Case Citations
Identifying Citing Cases
- Shepard's and KeyCite reports list all subsequent cases that have cited the original case, organized by jurisdiction and level of court
- These citators provide the full citation, date, and a brief summary of each citing case's treatment of the original case
- Researchers can quickly scan the list to identify potentially relevant citing cases for further analysis
- Citators often allow researchers to filter results by jurisdiction, treatment type (positive, negative, distinguishing), or date range to focus on the most pertinent citing cases
Tracing Legal Developments
- Researchers can use the citing cases to trace the development of the legal issues and principles discussed in the original case
- Analyzing the facts, reasoning, and holdings of citing cases helps determine how courts have interpreted, applied, or distinguished the original case in different contexts
- Citing cases may expand or narrow the original case's holding, apply it to novel factual situations, or reconcile it with other legal doctrines
- Tracing the evolution of the legal principles through citing cases can provide a more comprehensive understanding of the current state of the law
Finding Additional Authority
- Identifying relevant citing cases can lead to additional primary and secondary sources to support legal arguments or counter opposing positions
- Citing cases may discuss related legal issues, policy considerations, or interpretive approaches that can bolster a researcher's analysis
- The citations within citing cases ("citations within citations") can point researchers to other relevant cases, statutes, or secondary sources not directly linked to the original case
- By exploring the network of citing cases and their cited authorities, researchers can build a more robust and persuasive legal argument
Key Terms to Review (16)
Authority Check: An authority check is a process used to verify the validity and current status of legal authority, such as case law, statutes, or regulations. This step ensures that the legal sources being cited are still good law, meaning they have not been overturned, amended, or otherwise rendered ineffective. Regularly conducting authority checks is essential for maintaining the integrity and reliability of legal research and ensuring that legal arguments are based on accurate information.
Binding Authority: Binding authority refers to legal rules or principles that must be followed by courts in a particular jurisdiction. This concept is critical as it ensures consistency and predictability in legal decisions, meaning that lower courts must adhere to the precedents set by higher courts within their jurisdiction. Understanding binding authority is essential for effective legal research and analysis, especially when it comes to updating case law, researching statutes, and using secondary sources like treatises and restatements.
Case Citation: Case citation is a standardized reference format that allows legal professionals and researchers to identify and locate judicial opinions in legal documents and databases. It provides essential information such as the names of the parties involved, the volume number of the reporter, the page number where the case begins, and the year it was decided. This standardization is crucial for effectively Shepardizing cases and for researching unpublished or unreported cases, ensuring accurate references and updates.
Dissenting Opinion: A dissenting opinion is a written statement by one or more judges expressing disagreement with the majority opinion in a legal case. This type of opinion is important because it provides an alternative viewpoint and can influence future legal interpretations or rulings. Dissenting opinions highlight the complexities of legal reasoning and can reveal the diversity of thought among judges, showing that not all members of the court agree on the outcome of a case.
Jurisprudence: Jurisprudence refers to the study and theory of law, encompassing various schools of thought regarding the nature of law, its purposes, and its relationship to morality and society. This term plays a crucial role in understanding how legal principles evolve, the reasoning behind judicial decisions, and how historical and philosophical influences shape legal systems. By examining jurisprudence, one can gain insights into the foundational ideas that guide legal interpretations and practices over time.
KeyCite: KeyCite is a legal research tool provided by Westlaw that helps users verify the current status of a legal case or statute and find relevant case law, citing references, and other legal resources. It enables researchers to track the treatment of a case over time, ensuring they are relying on valid and authoritative legal precedents. KeyCite is essential for updating case law and plays a significant role in enhancing legal research by connecting users to related legal documents and ensuring thoroughness in their findings.
Legal Currency: Legal currency refers to the medium of exchange that is officially recognized by a government for transactions and payment of debts. It is the currency that must be accepted if offered in payment of a debt, as it holds legal tender status, which is crucial when analyzing case law and understanding how courts treat monetary transactions.
LexisNexis: LexisNexis is a comprehensive online legal research database that provides access to a vast collection of legal resources, including case law, statutes, regulations, legal journals, and secondary sources. It is a critical tool for legal professionals and students to conduct thorough and efficient research across various areas of law.
Majority opinion: A majority opinion is a judicial opinion that is agreed upon by more than half of the members of a court. It serves as the official ruling of the court and outlines the legal reasoning behind the decision, providing a binding precedent for future cases. This type of opinion is essential for understanding how courts interpret laws and make decisions, making it crucial for analyzing case law and updating legal precedents.
Negative Treatment: Negative treatment refers to the indication that a legal case has been negatively affected or overruled by subsequent cases or legislation. This term is crucial for understanding the validity and reliability of legal precedents, as it alerts researchers that a cited case may no longer be good law and should be approached with caution.
Parallel Citation: Parallel citation refers to the practice of providing multiple references for the same legal case, allowing the case to be found in different legal publications or reports. This practice is important because it ensures that legal professionals can access the case from various sources, which may use different citation formats, thereby increasing the accessibility and reliability of legal research. Understanding parallel citations helps in updating and Shepardizing case law effectively, as it provides alternative routes to track the most current legal status and interpretations of a case.
Precedent: Precedent refers to a legal principle or rule established in a previous court decision that is used as an example or authority for deciding similar cases in the future. It plays a crucial role in shaping the law and guiding judges in their rulings, promoting consistency and predictability in legal outcomes.
Shepard's Citations: Shepard's Citations is a legal research tool that provides a comprehensive method for tracking the history and treatment of court cases, statutes, and regulations. It allows legal professionals to verify the current status of a legal authority, ensuring it is still good law and identifying subsequent cases that have cited it. This helps in understanding how cases have been interpreted or applied over time, making it crucial for updating case law.
Stare decisis: Stare decisis is a legal principle that means to stand by things decided, which promotes the consistent application of the law by requiring courts to follow established precedents. This principle ensures that similar cases are decided in a similar manner, fostering stability and predictability in the legal system.
Subsequent History: Subsequent history refers to the legal status of a case after its initial decision, including any later judicial actions, opinions, or modifications that impact its authority. This concept is important because it helps legal researchers understand how a case has been treated by later courts, whether it has been affirmed, reversed, or distinguished, and what precedential value it holds moving forward.
Westlaw: Westlaw is a comprehensive online legal research service that provides access to a vast database of legal resources, including case law, statutes, regulations, and secondary sources. It serves as an essential tool for legal professionals, offering features that enhance the research process through advanced search capabilities and detailed analysis.