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BUSI 3312: Business Law

Tips for finding full text of cases, Shepardizing, etc.

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" (the brand name service) may only be done in Nexis Uni, 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  • “Good law” means that the cases have not been reversed on appeal, overruled, superseded, or criticized by later cases.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  • Superseded By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  • Rescinded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: Nexis Uni

An easy way to Shepardize a case is:

  1. First, find the case you are interested in; go to the full text of case.
  2. Click on link in right-hand column:  Shepardize this document.
  3. The automatic view is for all Citing Decisions.
  4. In the left-hand column under Narrow By, look at the categories under Analysis.
  5. The case is still “good law” if it has not been overruled, superseded, etc.
  6. If not overruled, it still might have some negative treatment.
  7. Click on icon for Grid View in the upper right-hand corner of the screen for a court-based view or date-based view of the citing decisions.

Signal Legend:

Icon Indication
an icon indicating a warning Warning: Negative treatment is indicated
an icon indicating questioned Questioned: Validity is questioned by citing references
an icon indicating a possible negative treatment Caution: Possible negative treatment
an icon indicating a positive treatment Positive treatment is indicated
an icon indicating analysis available Citing references with analysis is available
an icon indicating source information (For source information, NOT Shepard’s analysis)

"Shepardize" a Case: Westlaw KeyCite

You can only use the brand name service  “Shepardize” in Nexis Uni. Westlaw has created a similar product called “KeyCite.”  Like Shepard's, KeyCite is also available for state and federal cases.

To use KeyCite:

  1. Find a case; go to the full text of case.
  2. Top of screen should have a brief note that states if the case is overruled, superseded, etc.
  3. KeyCite information is under the tabs Negative Treatment, History, and Citing References.
  4. Click tab for Negative Treatment to see if still good law.
  5. Click tab for History to see Graphic view of appellate history of a case (this is great option to display on a PowerPoint slide). If tab is "History(0)," there will not be a graphic.
  6. Can click tab for Citing References and drill down the Secondary Sources options in left column to find if any law review articles have been written about the case.
  7. Tip:  Click on KeyCite icon at top of screen for explanation of flag icons.
  8. Note:  KeyCite will not always state “there is no subsequent history.”
  9. Note: information may not always be as obvious in KeyCite as it is in Shepard’s. 

FAQs

“Shepardize” a Case: Use Nexis Uni or Westlaw?

Use both!!!

For some complex cases, it may only be clear in one of the citators.

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 Certiori denied

The case was not accepted to be heard by the higher court.

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.