Even for traditional researchers that like to depend on print resources, tracking a case through the Shepard’s books is like utilizing the legal Rosetta Stone. Very few want to brave the paper decoding process for case citators, especially when online resources have reduced everything to a simple system of flags and icons. Non-lawyers especially are easily intimidated by all the symbols and abbreviations found in the paper version of Shepard’s. The necessity of being able to rely on a web service’s judgment, therefore, is crucial, and so this article takes a look at how several research services handle the “good law or bad law” question.
As a test case to compare in the major online citation-checkers, I chose Allen v. Scholastic Inc., 739 F.Supp.2d 642, (S.D.N.Y., 2011). It has been cited and mentioned by a manageable amount of other cases, and there is one case that explicitly discusses the principle that Allen was decided on. So the results in the online services should be fairly similar. Also, it’s just a really fun case to read, as the court has to decide if a Harry Potter book was so similar to a book called The Adventures of Willy the Wizard that copyright infringement took place. The court painstakingly compares the opening scenes of the two books and becomes more harshly critical as the opinion goes on due to the court’s obvious dislike of the Willy book. The court writes, “Beyond the background fact of the wizards’ contest, the book lacks any cohesive narrative elements that can unify or make sense of its disparate anecdotes—a generous reading may infer that its purpose is to engage a child’s attention for a few moments at a time, much like a mobile or cartoon. Indeed, the text is enlivened only by the illustrations that accompany it.” Ouch.
A baseline start to checking citations would be Google Scholar, since it’s free and everyone can access it. Putting the Allen citation in Google Scholar retrieves the full text of the case, and clicking on the “How cited” link retrieves Google’s version of Shepardizing. It found the major case that follows Allen’s ruling, DiTocco v. Riordan, 815 F.Supp.2d 655 (S.D.N.Y., 2011). Google assigned DiTocco a special symbol that looks like 3 horizontal lines on top of each other. When hovering over the symbol, the words “discusses cited case at length” appears. DiTocco has a very similar fact pattern in which 2 similar books were compared for copyright infringement purposes in the context of a motion to dismiss. In its citation list, Google also found, among others, the 3 other cases that were all listed by Westlaw, Lexis, and Fastcase when a similar search for Allen was done: Hallford v. Fox Entm’t. Grp., Inc. (S.D.N.Y., 2013), Alexander v. Murdoch (S.D.N.Y., 2011), and Muller v. Twentieth Century Fox Film Corp., 794 F.Supp.2d 429 (S.D.N.Y., 2011). Google, however, does not provide easy colored flags to tell you if the Allen case has been negatively treated by other courts. You must either read the selected quotes from other cases that Google provides in order to decide for yourself, or you can read the entire cases that Google has linked to. Because Google gave the DiTocco top listing in its results, though, it certainly leads the researcher in the right direction.
I next put the Allen case in Fastcase, since many state bar members have access to a free level of the Fastcase service. Fastcase listed Hallford, Alexander, and Muller as its only case references for Allen, did not offer any flagging, and the text of the cases were not available through the free level. It even states that its “authority check” service “is not a citator, and does not include editorial information telling you whether your case is still good law.” I was very surprised that Google’s offerings easily surpassed what Fastcase provides.
Westlaw decided that 3 cases discussed the Allen case with a high level of depth. These cases were the DiTocco & Alexander cases, plus a case that did not make the Federal Supplement, Mena v. Fox Entertainment Group, Inc., 2012 WL 4741389. Westlaw labeled these high-depth discussion cases with a symbol that looks like 3 bars of 4. Whether you think this is a better graphics system than Google’s 3-lines symbol is a matter of personal preference. Westlaw also lists the Hallford & Muller cases by assigning them 2 bars out of 4 as merely cited cases. When printing out the Keycite list of references, all the cited cases are listed as positive, so Westlaw leaves no doubt that it feels the Allen case has no negative history. It’s this small but crucial bit of editorial that one pays for with the Westlaw and Lexis systems.
Lexis owns the brand name Shepard’s and so it is the default report that attorneys know carries the most credibility when presented to a judge. With our Allen case, Lexis gave the case only positive treatment, and found that DiTocco was the only case to explicitly follow Allen. Lexis also provided an interesting feature of dividing its cited cases by district, which of course is helpful in looking for cases within your own district that would carry more weight with your local judge. To this effect, the cases Lexis cited were DiTocco, Alexander, Mena, Muller, Hallford, and Angela Adams Licensing LLC v. Wal-Mart Stores, Inc, 2011 U.S. Dist. LEXIS 131697.
All the services thankfully brought up the same core of cited cases when I entered my Allen test case. I was pleased to find that Google is making more of an editorial effort as it flagged the major case DiTocco which discusses my test case. This means that the general public can use Google a little more easily and reliably to research the citation history of a case, even more so than the free attorney access that Fastcase provides! The most immediate convenience of a positive/negative flagging system still is only available through the Westlaw and Lexis services, however. Remember, your local law library most likely provides free Westlaw and Lexis access so you can go in and take your own sample case for a test spin with those services.