There are plenty of landmines in law school legal writing, but whether you are citing “good law” is a fundamental step of legal analysis that will be crucial to your success in law school and beyond. Early in your law school career, you will inevitably hear the terms “good law” and “bad law” bandied about without much definition. I remember being told as a 1L that tools like LexisNexis’s Shepard’s (or similar tools that gather subsequent appellate history and citing decisions) would tell you if your case law was good or bad. So, I would dutifully pull a Shepard’s report, but disoriented by the cryptic symbols, I would simply flee any line of cases when a red stop sign appeared and maybe take my chances when a yellow triangle appeared. There is no reason to be intimidated by checking case law validity. This post won’t cover every possible scenario, but hopefully it will provide a strategy for thinking through your good law/bad law analysis and make that Shepard’s report just a little less daunting.
Good Law and Bad Law Terminology
In the legal context, “good law” and “bad law” are anything but a subjective evaluation of a given law. If a proposition of law from a case is a valid, citable legal proposition in your jurisdiction, it is “good law.” Logically enough, if a proposition from a case is no longer a valid legal proposition, it is “bad law.” How can good law that a smart judge put into an opinion become bad law? Later higher court rulings or statutory developments can turn previously valid legal propositions into nothing more than historical footnotes.
The first step is to know what court issued your opinion. Is it a state court or federal court? What level is your court? Is it from a district court or a court of appeals? Knowing where your issuing court is situated in the wider court system is key to your analysis. To identify bad law, you need to check your case’s subsequent appellate history and cases from relevant courts that negatively cite your case to ensure nothing has undermined your cited proposition. To do this, I suggest first thinking vertically and then thinking horizontally.
First, think vertically – look for subsequent appellate history for your case and other higher court cases that negatively cite your case. The most common ways for your proposition to become bad law is for a higher court to reverse or overrule your cited case on grounds that affect your proposition. Do the following for subsequent appellate history and negative higher court citing decisions:
- Look to see if your case has a subsequent appellate history. That is, was your cited case appealed? Did the higher court reverse your opinion on the grounds for which you are citing it? If so, your proposition is likely bad law.
- Look to see if your case has been overruled by a higher court in another case. If your legal proposition comes up in another case, a higher court could overrule your case explicitly. If your case is overruled on the grounds for which you cite it, your proposition is bad law. Also, note that a higher court could abrogate a lower court ruling by making a statement of law that contradicts your proposition – essentially overruling your case without mentioning it by name.
Second, think horizontally – look for cases by courts at the same level that negatively cites your case. For example, if you are citing a case from the 5th Circuit U.S. Court of Appeals, you would look at a 9th Circuit U.S. Court of Appeals case that has negatively cited your case. Even though same-level courts cannot directly affect your case’s validity, they can alert you to trouble you might otherwise miss. Do the following for negative same-level court citing decisions:
- Look to see if a same-level court claims your case has been overruled or abrogated by a higher court. This essentially double checks your vertical check of negative higher court citing decisions. A more recent same-level court’s analysis and treatment of your case could speak to the status of your case. This is a prime place to catch if your case has been abrogated by a higher court, so keep an eye out for claims that a higher court implicitly overruled it.
- Look to see if the same-level court is negatively citing your case because it claims your case proposition has been superseded by statute (or rule). If a statutory or rule change has undermined the basis for your cited case’s legal interpretation, its conclusions could be undermined. The next step is to pull the statute or rule itself and see if your proposition is still good law in light of the new controlling statute or rule.
- Look to see if the same-level court is simply making a different legal argument than your court. This could be a court “split,” i.e., where same-level courts disagree. Splits are often the subject of your writing because they are prime legal questions, but a split doesn’t mean that your law is bad. If a negatively citing same-level court just disagrees with your case’s legal analysis or interpretation, your case can still be good law in its own jurisdiction. If there is no higher court ruling on the legal proposition, then your law remains good law, even if it is not followed outside your court’s jurisdiction.
Keep in mind that every case-law proposition must be analyzed individually. It’s possible for your cited case to be reversed or overruled on one ground, but not a ground related to your proposition. For example, if the proposition you cited was not challenged when your case was appealed, even if your case is reversed, the reversal could not affect the validity of your citation to that lower court case. This is a good place to note that this crucial legal writing step will take time, so don’t forget to budget time for checking the validity of your citations.
Whether you are writing an LRW legal memo, trying to write on to law review, or drafting a research memo at your internship, some aspects of legal writing will change, but determining if your citations are good or bad law will always be an essential aspect to getting the substance right. Checking case-law validity is more than just pulling a Shepard’s report and looking at the colorful symbols, but don’t be intimidated. It takes some time and thought, but citing good law and avoiding bad law is well worth the effort!
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Such an informative and useful post. Thanks.