By Jason Wilson
As legal researchers, we value citators. When I was in law school, you had to “Shepardize” your cases to determine whether the case was overruled, followed, distinguished, criticized, etc. Many years later, we were introduced to “KeyCiting” cases, which everyone understood to be pretty much the same thing. Now you can use CaseMaker’s CaseCheck+ for some jurisdictions. FastCase’s service, Forecite, isn’t really a citator as much as it is a data miner looking for similar citations between cases containing your search terms, and showing you other cases that are cited most frequently in those (i.e., relevant cases that don’t contain your search terms). Whatever the service, we’re engaged in the process because we want to make sure what we were citing is good law.
But let’s consider the phrase “good law” for a second. According to these citators, good law is principally how other opinions (and in some instances, statutes) have treated your citation over time. In other words, the only relationships that most citators care about is the one between cases. Perhaps in 1873, when Frank Shepard created the idea of a legal citator, that was the only relationship that really mattered. But in 2011, it seems hardly adequate.
I say this because one of the most important relationships in legal research has gone untouched for decades, and it puzzles me as to why. I’m speaking of course about the relationship of cases and amended statutes and rules. I have no empirical data on this, and please feel free to comment and tell me if I’m wrong, but I would suspect that the number of citations to statutes and rules in judicial opinions is increasing as fast as legislators can find new ways to codify the common law and regulate commerce and relationships.* And as those increase, the number of amendments and corrections does as well.
Yet the citators never clue us in on the fact that a particular statute or rule cited in the opinion was amended, renumbered, or repealed since the date of publication. Sure, they might tell us that a statute was enacted or amended to overrule an opinion, but they’re typically silent if there’s no clear guidance one way or the other (that can be mined by an algorithm). What I would actually like to see is some type of noter up (a visual que) in the body of the opinion itself, something I could click on, that shows me when and how the statute or rule was changed to help me make a decision about the cases continued value as good law. An even better approach would be to show me the version of the statute cited in the opinion next to the amended version. Now that would make me a more efficient researcher.
We like to think that the precedential value of an opinion is tied directly to what more recent cases have had to say about it, and that’s partly true. The other half is whether the opinion relies on the interpretation of a statute or rule and whether that law has changed since the date of the opinion. For me, relying on newer cases that cite the opinion approvingly is of little comfort. It takes a lot more work beyond the citator results to know whether what you’re citing is actually good law. And for supposedly modern research tools, that’s a damn shame.
[Image (CC) by pastaboy sleeps]
* I did make an effort to search Google and Hein Online for papers analyzing citation practices of courts. Not surprisingly, most concentrate on citations to legal treatises, law review articles, and other scholarly reference works. I tend to fall asleep whenever I see mathematical equations and lots of numbers, so I stopped researching. And as far as the growth of statutory law is concerned, just consider the projected growth of the United States Code. The Office of Law Revision Council is currently working on several additional positive law codification projects that will add another four titles. As noted last year by the guys over at Computation Legal Studies, (1) the amount of language in the USC is increasing by over 2,000 words per day, (2) the structure of the Code is growing by over three sections per day, and the interdependence is growing by seven citations per day. That’s just federal law folks.