Using Shepard’s or KeyCite to make sure the cases you rely upon are good law is an essential part of the research process. These citators, however, aren’t perfect and I was reminded of that yesterday by a question from one of my students who’s out doing research this summer. What happens when a case you are reading relies upon a case or a statute that has been overruled or repealed? The Shepard’s/KeyCite symbol for your case won’t indicate that your case is bad law, but it very well may be. This is known as the citator gap because the citators don’t pick up an overruling one step removed.
So, how do you compensate for the citator gap? Westlaw and Lexis both have Table of Authorities features that allow you to look at a list of all the cases cited in your case along with those cases’ citator symbols. (WestlawNext and Lexis Advance do not as of yet have these features.) Here’s how a portion of the TOA in Westlaw looks.
So, say the case you’re reading relied on the overruled case Plessy v. Ferguson. Your case wouldn’t show a red flag or red stop sign for that reason alone, but if you looked at the Table of Authorities you’d see Plessy and see that it was overruled. You’d then be on notice that the holding in your case is suspect. Statutes don’t show up in the Table of Authorities, so if your case cites a statute you’re interested in, you’ll just have to click the link and see if it’s been repealed or ruled unconstitutional.