![\"Shepards\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2015\/04\/Shepards.jpg\")
<\/p>\n
For over a century law students, lawyers, and judges\u00a0conducted forward citation searches on key decisions using the Shepard\u2019s publications.\u00a0 So tight was the association that the process became known as \u201cShepardizing\u201d.\u00a0 One “Shepardized” a case to assure it had not be overruled by a higher court, to determine its status and range of interpretation within the jurisdiction of origin, to see how it had been treated elsewhere.<\/p>\n
Cases and Citators Go Digital<\/h2>\n
Once electronic databases were\u00a0central to case research, their incorporation of a citator function became essential.\u00a0 The value of providing the digital equivalent of Shepard\u2019s gummed list proximate to every retrieved opinion was obvious. And in a hypertext environment that list of citing cases could itself offer point and click access to each one of them.\u00a0 Moreover, once held in a database the entries could be filtered and sorted.\u00a0 Today, all case law database services of professional quality offer retrieval of subsequent citing cases as an option adjacent to each opinion.\u00a0 Some not only list the citing cases but analyze and characterize those references as the Shepard\u2019s print publications once did.<\/p>\n
As electronic case law collections evolved, however, they posed fresh challenges for these companion citators.\u00a0 Increasingly the leading\u00a0online databases\u00a0added decisions that the Shepard\u2019s lists had ignored, cases without standard print citations.\u00a0 These included opinions that would never be published in print, either because of court designation or publisher discretion, as well as \u201cslip\u201d versions of those whose publication was anticipated but had not yet occurred.\u00a0 Generally unexamined is the extent to which the relative performance of today\u2019s online citators is affected by how they deal with citations in<\/strong> and citations\u00a0to<\/strong> opinions falling in these two categories.\u00a0 That performance varies considerably.\u00a0 Researchers who assume complete results are, with some services, likely to miss important cases.\u00a0 Those who know the limitations of the citator on which they rely can, when necessary, augment its results with their own database search.<\/p>\n Because of their high volume Social Security cases provide a particularly clear illustration of the problem posed by the delayed application of citation parameters and the range of responses to it by the citators now embedded in the major online services.\u00a0 As of April 23 five \u201cprecedential\u201d decisions in cases appealing a denial of benefits by the Social Security Administration had been released by the Seventh Circuit U.S. Court of Appeals since the beginning of 2015.\u00a0 (Decisions the Court does not deem significant to other cases it labels \u201cNonprecedential\u201d and withholds from publication in the Thomson Reuters Federal Reporter<\/em> series.) \u00a0\u201cFour of the five were written by Judge Richard Posner.\u00a0 Three of his decisions and one by Judge Daniel Manion reversed trial court decisions that had affirmed the agency\u2019s benefit denial.<\/p>\n From the moment of release, the potential ripple effect of opinions like these is substantial, throughout the district courts falling within the Seventh Circuit and beyond.\u00a0 Consider the numbers.\u00a0 During the twelve months ending June 30, 2014, those districts received 1,441 Social Security appeals<\/a>.\u00a0 Within weeks, in some cases days, the five 2015 Court of Appeals decisions were being cited.\u00a0 Curvin v. Colvin<\/em><\/a>, No. 13-3622 (7th Cir. Feb. 11, 2015), the earliest of the set, has now been cited at least 12 times.\u00a0 (A pro-claimant Social Security decision of the Seventh Circuit handed down a little\u00a0over a year ago \u00a0\u2013 Moore v. Colvin<\/em><\/a>, 743 F.3d 1118 (7th Cir. 2014) \u2013\u00a0 has been cited over 125 times, at least twice outside the circuit.)<\/p>\n Curvin <\/em>illustrates the difficulty faced by anyone or any system attempting to track these citing references.\u00a0 The decision was handed down on February 11, 2015 but did not receive its \u201c778 F.3d 645\u201d designation until a month and a half later.\u00a0 During the intervening weeks it was cited at least eight times by district courts within the Seventh Circuit.\u00a0 Perforce those citations identified the Seventh Circuit opinion by docket number and exact date or a proprietary database citation (\u201cWL\u201d).\u00a0 Most, but not all, used both in parallel, yielding citations in the following form: Curvin v. Colvin<\/em>, No. 13-3622, 2015 WL 542847 (7th Cir. Feb. 11, 2015).\u00a0 A straight database search on \u201c778 F.3d 645\u201d will not retrieve those cases.\u00a0 A database search on \u201c2015 WL 542847\u201d will retrieve those using the Westlaw cite (but not those employing the LEXIS equivalent \u201c2015 U.S. App. LEXIS 2170\u201d or the \u201cF.3d\u201d cite).\u00a0 A search on \u201c13-3622\u201d and \u201cCurvin\u201d will retrieve those including Curvin<\/em>\u2019s docket number but not those relying solely on a proprietary database cite or the ultimate\u00a0“F.3d” cite.<\/p>\n Most case law databases purport to do this messy work for the researcher.\u00a0 With some Curvin<\/em>\u2019s rank in a set of search results may even be determined by how many citations to it there have been.\u00a0 What not all manage to do is to include those instances of citation that occurred so soon after Curvin<\/em>\u2019s release they could not refer to the case as \u201c778 F.3d 645\u201d.\u00a0 A review of how the major systems actually address this issue (or don\u2019t) follows.<\/p>\n The dominance of Westlaw within the federal judiciary gives that system a clear advantage.\u00a0 So long as the early decisions cite the not-yet-published version of a case\u00a0using its \u201cWL\u201d citation, Westlaw can employ that identifier to link them\u00a0with those citing to the version later published in the company\u2019s National Reporter System (NRS).\u00a0 But what about decisions written by \u00a0federal judges who use LexisNexis and cite using its proprietary system?\u00a0 Senior Judge Donetta W. Ambrose of the Western District of Pennsylvania falls in this category.\u00a0 Had she relied on Curvin<\/em> in late February or early March 2015, her opinion would almost certainly have cited it: Curvin v. Colvin<\/em>, 2015 U.S. App. LEXIS 2170 (7th\u00a0Cir. 2015).\u00a0 (See<\/em>, for example, her decision in Nickens v. Colvin<\/em><\/a>.)\u00a0 How would Westlaw have responded?\u00a0 It would have added a parallel \u201c2015 WL 542847\u201d to her\u00a0Lexis cite, as it does to all opinion citations to \u201cnot yet published\u201d or \u201cnever to be published\u201d cases contained in the Westlaw database.\u00a0 That editorial step simplifies aggregation of all citations to a case prior its print publication.\u00a0 While Westlaw no longer displays\u00a0the \u201cWL\u201d cite for decisions that\u00a0have been given print citations in the National Reporter System, the service\u2019s citation listings rest on its maintaining the association between preliminary \u201cWL\u201d cites and their subsequent NRS equivalents. \u00a0This approach\u00a0enables Westlaw\u2019s listing of cases citing Curvin<\/em> to include the early ones that did not use its F.3d volume and page number.<\/p>\n Lexis follows a similar strategy. \u00a0Since most federal judges use Westlaw most of the early decisions citing Curvin<\/em> used its Westlaw cite.\u00a0 See, e.g.<\/em>, Haire v. Colvin<\/em><\/a>, No. 1:14-CV-00322-TAB-JMS (S.D. Ind. Feb. 20, 2015).\u00a0 On Lexis the cite to Curvin<\/em> in Haire<\/em> includes an added \u201cU.S. App. LEXIS\u201d cite.\u00a0 That enables the inclusion of Haire<\/em> in the service\u2019s dynamically generated list of decisions citing Curvin<\/em>.\u00a0 It also facilitates another Lexis practice, the subsequent addition of parallel \u201cF.3d\u201d cites to decisions that did not,\u00a0as written,\u00a0include them.<\/p>\n Bloomberg has a \u201cBL\u201d citing scheme which it now deploys much like the Lexis cites, but with greater clarity.\u00a0 When a case in its database is cited by a later decision using only docket number and date or a Westlaw or Lexis cite, Bloomberg inserts\u00a0a parallel \u201cBL\u201d cite. \u00a0This editorial addition is, however, placed in square brackets, an acknowledgment that it was not part of the original text.\u00a0 Bloomberg Law has expanded Haire<\/em>\u2019s cite to Curvin<\/em> written by the court as \u201cCurvin v. Colvin<\/em>, No. 13-3622, 2015 WL 542847, at *4, — F.3d —- (7th Cir. Feb. 11, 2015)\u201d to \u201cCurvin v. Colvin<\/em>, No. 13-3622, [2015 BL 34654<\/strong>], 2015 U.S. App. LEXIS 2170 , 2015 WL 542847 , at *4, ___ F.3d ___ (7th Cir. Feb. 11, 2015)\u201d. \u00a0This practice appears\u00a0relatively new. \u00a0Decisions of an earlier vintage Bloomberg loaded as received without adding \u201cBL\u201d parallel cites. \u00a0As a result decisions from that period are missed by Bloomberg’s\u00a0linked retrieval of citing documents. \u00a0(The fact that Bloomberg\u2019s versions of decisions now also include the Lexis cite, without the square brackets, suggests a data sharing arrangement between the two companies.)<\/p>\n Judging at least from this sample of one, Bloomberg appears to add cases more rapidly than either Westlaw or Lexis. \u00a0During the week of April 20th\u00a0two more district court decisions citing Curvin<\/em> were released.\u00a0 Both were in the Bloomberg database and listed as citing cases the following day.<\/p>\n Google Scholar does\u00a0not to attempt to track citing references for cases until they have received a permanent citation in the Thomson Reuters books.\u00a0 To date it does not have the NRS version of Curvin.<\/em>\u00a0 When one clicks on the \u201cHow cited\u201d link for the “slip” version of the \u00a0case, one gets the message: \u201cWe could not determine how this case has been cited.\u201d\u00a0 To find those cases a researcher must know to search on the party names and Curvin<\/em>\u2019s docket number or, alternatively, on its proprietary cites.\u00a0 The latter, of course, do not appear on Google Scholar or the public domain version of Curvin<\/em><\/a> released by the Seventh Circuit and now (and forever?) available from the GPO\u2019s Federal Digital System<\/a> (FDsys).\u00a0 At some point Scholar will replace the original version of Curvin<\/em> with that published by Thomson Reuters.\u00a0 Once it has, the decision’s \u201cHow cited\u201d link will work, but it will not retrieve the early cases which\u00a0did not cite Curvin<\/em> by volume and page number because they could not.\u00a0 Researchers who\u00a0know that can augment Google\u2019s automatically generated list by doing the sort of searches suggested above.<\/p>\n Like Google Scholar both Casemaker and Fastcase\u00a0limit their retrieval of citing cases to those that cite by means of NRS volume and page number, thereby missing the earliest references.\u00a0 Leavitt v. Cohen<\/em><\/a>, No. 1:12-cv-1427-DKL-JMS (S.D. Ind. March 4, 2014) cited Moore v. Colvin<\/em>, 743 F.3d 1118 (7th\u00a0Cir. 2014), released less than a week before, using the format: Moore v. Colvin<\/em>, ___ F.3d ___, 2014 WL 763223, *1(7th Cir. 2014).\u00a0 Since neither Fastcase nor Casemaker later fill in such blank \u201cF.3d\u201d citations or employ an enduring identifier for Moore<\/em> (like the proprietary citation schemes of Bloomberg, Lexis, and Westlaw) neither includes Leavitt<\/em> as a case citing Moore<\/em> as those services do.<\/p>\n Casetext<\/a> does not yet have a fully developed method of indexing citing cases.\u00a0 It is designed to allow the ranking of search results by \u201cCite count\u201d but while its database includes many more it lists only two cases as citing Moore<\/em>.<\/p>\n Ravel<\/a> has stronger incentive to solve the citator problem because its visualization of search results derives in significant part from citation links.\u00a0 However, to date Ravel\u2019s cite count does not include case citations that pre-date the availability of the canonical NRS volume and page cite for a case.\u00a0 It counts only 70 cases as citing Moore v. Colvin<\/em>.\u00a0 Those in its database not using that decision\u2019s full “F.3d” cite do not make the list.<\/p>\n A 2013 \u201cunpublished\u201d Social Security decision of the Ninth Circuit illuminates this closely related citator issue. In Farias v. Colvin<\/a><\/em>, No. 11-57088 (9th Cir. May 20, 2013),\u00a0the court reversed a district court decision that had affirmed a denial of disability benefits. \u00a0Its\u00a0memorandum opinion faulted the Administrative Law Judge\u2019s uncritical acceptance of testimony from a vocational expert.\u00a0 Being an unpublished memorandum opinion the Farias<\/em> decision does not enjoy the status of precedent even within the courts that comprise the Ninth Circuit. Print-based Shepard’s would have ignored it.<\/p>\n On the other hand, unpublished decisions like Farias<\/em>\u00a0can be cited by counsel as persuasive authority<\/a>. \u00a0In fact, at least fifteen subsequent (unpublished) district court decisions refer to the Farias<\/em>\u00a0case. \u00a0Because of the Thomson Reuters Federal Appendix <\/em>reporter<\/a>, Farias<\/em> did in fact\u00a0<\/em>receive a print citation before 2013 was over, notwithstanding its “unpublished” designation, but not before being cited in at least two district court decisions.\u00a0 Thus, in one sense cases like it\u00a0pose the same problem\u00a0for citation compilers as those posed by cases eventually published in the Federal Reporter<\/em> \u2013 a need to gather the earliest citations together with later ones expressed in terms of print volume and page numbers.\u00a0 However, the decision\u2019s \u201cunpublished\u201d status and the dubious value of \u201cFed. Appx.\u201d cites has led some case law services to stumble over providing useful citator results.\u00a0 The major three \u2013Bloomberg, Lexis, and Westlaw \u2013 use their respective systems of proprietary citation to link Farias<\/em> to the full spectrum of citing district court decisions.\u00a0 In contrast users of Google Scholar, Casemaker, and Fastcase are led to believe that Farias<\/em> has not been cited unless they know enough to undertake a forward citation search on their own.\u00a0 And because some of the citing cases use the Farias<\/em> decision\u2019s \u201cFed. Appx.\u201d cite and others don\u2019t, some include the case docket number but most don\u2019t, some use a proprietary database citation and others not, no single search other than one based simply on the case name (\u201cFarias v. Colvin<\/em>\u201d) will retrieve them all.<\/p>\n In jurisdictions that attach official citations to decisions at the time of release there is little difficulty generating a complete list of subsequent citing cases.\u00a0 Assuming that the court-attached citations are routinely used (whether or not in parallel with the National Reporter System or any other citation) a simple database search will retrieve all citing references.\u00a0 In 1999 the Oklahoma Supreme Court decided an influential case dealing with attorney malpractice liability.\u00a0 When released it carried the designation \u201c1999 OK 79\u201d.\u00a0 A search on that string, whether carried out directly by a researcher or automatically by software generating a citator list, should\u00a0gather a comprehensive list of references to Manley v. Brown.<\/em>\u00a0 That fact has enabled the Oklahoma State Courts Network database<\/a> to append a list of citing cases to the decision in Manley<\/em><\/a>.\u00a0 Although the case appears in the National Reporter System as \u201c989 P.2d 448\u201d a researcher or automated citator searching cases for references to Manley<\/em> will not be thrown off by use of that print reference so long as it appears in parallel with the court-attached cite, as it does in all Oklahoma decisions and in a 2013 decision of the Illinois Appellate Court<\/a>.\u00a0 Any citation search that relies solely on NRS citations for Oklahoma cases runs the risk of missing some.<\/p>\n","protected":false},"excerpt":{"rendered":" Shepard\u2019s Citations In 1873, Frank Shepard began compiling and selling lists of citations to Illinois decisions printed on gummed paper (Shepard\u2019s System of Adhesive Citations). \u00a0Purchasers pasted them into the margins of their bound case reports.\u00a0 Shepard\u2019s lists linked each reported case to any subsequent reported decision that referred to it. \u00a0When gummed addenda proved […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,11,17],"tags":[13,14,18],"class_list":["post-300","post","type-post","status-publish","format-standard","hentry","category-cases","category-neutral-citations","category-unpublished","tag-cases-2","tag-neutral-citations-2","tag-unpublished-2"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/300","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=300"}],"version-history":[{"count":16,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/300\/revisions"}],"predecessor-version":[{"id":341,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/300\/revisions\/341"}],"wp:attachment":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=300"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=300"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=300"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}The Citator Challenges Posed by Unpublished Decisions<\/h2>\n
Citations to Not Yet Published Decisions<\/h3>\n
Westlaw<\/h4>\n
![\"westlaw_citator\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2015\/04\/westlaw_citator.jpg\")
<\/a><\/p>\nLexisNexis<\/h4>\n
![\"lexis_citator\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2015\/04\/lexis_citator.jpg\")
<\/a><\/p>\nBloomberg Law<\/h4>\n
![\"bloomberg_citator\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2015\/04\/bloomberg_citator.jpg\")
<\/a><\/p>\nThe More Limited\u00a0Approach of Google Scholar, Fastcase, and Casemaker<\/h4>\n
What about Newcomers like Ravel Law and Casetext?<\/h4>\n
Citators and Never-to-be-Published Decisions<\/h3>\n
One More\u00a0Argument for Adoption of Court-Applied Systems of Citation<\/h2>\n