What is "Shepardizing"?
One significant purpose of Shepardizing is to verify that a case is still "good law." The overall action of Shepardizing is to use a citator to see the other cases that have cited a case and their treatment of that case.
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. A 1902 in-depth explanation of the use of citations in legal research is available online.
While "Shepardizing" is a brand name service, the same task may be done in Westlaw by using KeyCite.
Shepardizing - Why "Update" a Case?
- With the doctrine of stare decisis, attorneys use previously decided cases as examples in arguing current cases with similar legal principles or fact patterns.
- Attorneys can argue in court that the issues or facts in their trial should be decided the same way as similar cases were previously decided.
- Because of the use of precedence (earlier, preceding cases), attorneys need to make sure that the earlier cases cited are still “good law.”
- “Good law” means that the cases have not been reversed on appeal, overruled, superseded, or criticized by later cases.
Shepardizing - General Information
Shepard’s Treatment
Strong negative treatment includes:
- Overruled by
- Questioned by
- Superseded By
- Revoked
- Obsolete
- Rescinded
Possible negative treatment includes:
- Limited
- Criticized by
- Clarified
- Modified
- Corrected
Positive treatment includes:
- Followed
- Affirmed
- Approved
"Shepardize" a Case: Westlaw KeyCite
"Shepardizing” is a brand name service, and currently unavailable through Cornette Library databases. Westlaw has created a similar product called “KeyCite.” Like Shepard's, KeyCite is also available for state and federal cases.
[We do not "Shepardize" cases for the public or the WT community]
To use KeyCite:
- Find a case; go to the full text of the case.
- At the top of the screen, there should be a brief note stating if the case is overruled, superseded, etc.
- KeyCite information is under the tabs, Negative Treatment, History, and Citing References.
- Click the tab for Negative Treatment to see if it is still "good law."
- Click the tab for History to see the Graphic view of the appellate history of a case (this is a great option to display on a PowerPoint slide). If the tab says "History(0)," there will not be a graphic.
- Optional: Click the tab for Citing References and drill down the Secondary Sources options in the left column to find if any law review articles have been written about the case.
- Tip: Click on KeyCite icon at the top of the screen for an explanation of the flag icons.
- Note: KeyCite will not always state “there is no subsequent history.”
- Note: Information may not always be as obvious in KeyCite as it is in Shepard’s.
- Westlaw This link opens in a new windowWestlaw simplifies your starting point for legal research. Try Westlaw's new interface for searching and accessing case law, US Code Annotated, statutes, court rules, regulations, and secondary sources including law reviews and journals as well as reference materials.
FAQs
How to “Shepardize” a Case: Use the Westlaw Database
Use the Westlaw Database!!!
What do I write in my case brief if the case has no subsequent history?
If you are unsure about this or any other question when briefing a case, please contact your instructor for clarification.
What does this term mean in Shepard's?
Examples of treatment seen when Shepardizing appear below. In the explanations, the phrase “the case” indicates the case that you are briefing. Please note that not all terms for negative treatment are listed below.
Confirm with your instructor when you need to cite cases that criticize, modify, etc. your case.
- No subsequent appellate history:
- Please note, even if there is no later appellate history (case was not appealed) for the case, it still may not be "good law."
- Overruled:
- “Bad law.” The citing case expressly overrules or disapproves all or part of the case. Just like a repealed statute, the case can no longer be used as a controlling law. You will need to give the citation of the case that overruled the case you are briefing.
- Criticized by:
- The citing opinion disagrees with the reasoning/result of the case you are Shepardizing, although the citing court may not have the authority to materially affect its precedential value. You will need to give the citation of the case that criticized the case you are briefing.
- Reversed by:
- “Bad law.” On appeal, reconsideration, or rehearing, the citing case reverses the case you are Shepardizing. You will need to give the citation of the case that reversed the case you are briefing.
- Modified:
- On appeal, reconsideration, or rehearing, the citing case modified or changed in some way, including affirmance in part and reversal in part, the case you are Shepardizing. You will need to give the citation of the case that modified the case you are Shepardizing.
- Remanded:
- If an appeals court reverses the judgment of the lower court, it may “remand” (send back) a case to the trial court for further action. Please note that you will probably not see a revised opinion published by the lower court. You can assume that the change was made by the lower court. You will need to give the citation for the case that remanded the case you are Shepardizing.
- Superseded by statute
- Made void by a law.
- Appeal denied:
- The request to appeal the case was turned down.
- Writ of Certiorari denied
-
The case was not accepted to be heard by the higher court.
A certiorari is a writ (order) by the appeals court to a lower court to send all the documents in a case so that the appeals court can review the decision. Most commonly used by the U.S. Supreme Court. A party seeking Supreme Court review "petitions" the Court to issue a writ of certiorari.