Reviewing, in his 2023 Year-End Report on the Federal Judiciary, the progress of lawyers and courts in adopting digital technology, Chief Justice John Roberts (twice omitting the apostrophe in a trademarked term) recalled that, as recently as three decades ago, “Legal writing instructors taught their students to check the continuing validity of precedents by sifting through bound volumes of a publication called Shepards. (Lawyers facing a deadline might skip this stage, proclaiming that ‘the Lord is my Shepards.’)”*
Today’s law students and lawyers can easily consult the Shepard’s Citations Service through the Lexis database—or use a counterpart offered by Westlaw—to prevent the nightmare of discovering that crucial caselaw has been overruled or superseded (or, even worse, that it had been “hallucinated” by an artificial intelligence application).
Although the figurative connotation of a sheep is “a timid docile person,” particularly “one easily influenced or led,” much can be learned from reviewing the decisions of courts that “declined to follow” a precedent.
To identify such opinions in Westlaw, click on the “Negative Treatment” link near the top left of the page displaying a decision of interest.
In Lexis, click on “Citing Decisions” near the top left of the page that displays the decision, and then click on “Warning,” “Questioned,” and “Caution,” below the resulting graph.
(Both services provide adjacent links to the appellate “History” of a decision, which is also very helpful to check.)
For at least eight reasons, law students might be well repaid by even a cursory pre-reading of a few decisions disagreeing with those assigned for the day’s class.
● First, casebook authors don’t necessarily include only decisions that were still (or that were originally) considered “good law.” Nor will all teachers agree with casebook authors on the merits of particular majority opinions.
A few weeks into law school, I felt completely and virtuously attuned to the material for Torts one morning, only to hear the professor begin that session by declaring that (in his opinion, at least) the major case for our discussion had been decided completely incorrectly.
● Second, casebooks and the authors’ post-decision notes might not reflect the latest developments in caselaw and statutes.
● Third, a court’s summary of, and quotations from, precedent that it disagrees with provide a fast review of that decision’s most important facts and analysis.
● Fourth, the disagreement may identify (and might even focus on) an opinion’s subsidiary conclusions, which might not be fully addressed in class. (But, as Rabelais might have said, revenons a nos moutons.)
● Fifth, a very rough guide to the acceptance of a decision can easily be found on Westlaw by comparing its number of “Negative Treatment” citations to its total number of caselaw citations (displayed next to “Cases,” the first item in the drop-down menu under “Citing References”).
● Sixth, relatively recent reactions by courts, particularly state supreme courts and federal Circuit Courts of Appeal, might well summarize, contrast, and/or quote key passages from a variety of judicial analyses of an issue, enabling you to efficiently track its general evolution.
● Seventh, for a geographical sense of courts’ reaction to a decision, the Lexis result for “Citing Decisions” includes a color-coded chart contrasting its treatment in different federal and state jurisdictions.
● Eighth, decisions “distinguishing” an assigned one might provide previews of the classroom’s Socratic discussions (and, possibly, exam questions), by identifying circumstances to which even a court persuaded by the original decision would not extend that analysis.
So to avoid seeming muttonheaded or woolly-thinking, or sounding sheepish (more formally, ovine), ewe shearly should consider wether to run several such searches pasture eyes before class.
*For a brief, practical, line-by-line explication of Psalm 23, which is often (but not exclusively) associated with mourners and funerals, see Harold Kushner’s The Lord is My Shepherd: Healing Wisdom of the Twenty-Third Psalm (2003).
Among Rabbi Kushner’s other books are a best-selling exploration of theodicy, When Bad Things Happen to Good People (1989); and, When All You’ve Ever Wanted Isn’t Enough: The Search for a Life That Matters (1986), which bears similarities to Viktor Frankl’s masterwork, Man’s Search for Meaning (1946; English translation, 1959) (previously discussed here).
