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August 31, 2009
No One Likes Heller (Or Why I'm Having the Citator Blues Again)
Like so many (or perhaps so few), on June 26, 2008, I anxiously awaited for the United States Supreme Court’s decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008) to be handed down. The Court held that the Second Amendment confers an individual right to keep and bear arms. The decision itself affects me in no way, but it was about time for the Court to decide the issue. Within days of the decision being handed down, I spent some time testing Precydent (the free legal research database with a citator). Heller did not show up, though Kennedy v. Louisiana, 128 S.Ct. 2641 (2008), which was decided the day before Heller came down, showed up on Precydent. And to this day, Heller does not appear on Precydent. So toss Precydent from your vocabulary.
Recently I spent time looking for examples of cases to illustrate how Keycite (Westlaw), Shepard’s (Lexis) and Authority Check (Fastcase) work for my Lawyering Skills 1 class. On Westlaw, I first ran a search for the “Second Amendment” and the “right to bear arms” in the Westlaw’s Sixth Circuit database. I stumbled on a case, United States v. Napier, 233 F.3d 394 (6th Cir. 2000) which held that the Second Amendment to the United States Constitution does not grant an individual right to bear arms, but rather the right pertains only to militias. And at the time Napier was decided, the issue was for the Sixth Circuit to decide in any way it saw fit. Well, as of today [ed. note - submitted to LLB on Aug. 26th] Keycite indicates that Napier was mentioned in the Heller dissent. However, Napier was clearly overruled, not just mentioned. By looking at Keycite’s status flag (a green C, indicating that the case has been cited but there is not neccessarily negative authority) one who was not aware of Heller’s existence may reasonably believe that there is no individual right to bear arms under the United States Constitution. And that in itself is fine. I would like more from Westlaw editors, i.e. to follow up on cases that are cited in concurring and dissenting opinions, but I’ll accept that green flag as being consistent with Keycite policy, i.e. paying little if no attention to concurring and dissenting opinions and only paying attention to cases cited in majority opinions. What I believe to be disturbing, however, is how Westlaw markets Keycite.
On page six of Westlaw’s Using Keycite on Westlaw’s Using Keycite on Westlaw User Guide, it states ”When you begin your research, use KeyCite to check the status of your case, statute, administrative decision, or regulation. You’ll see at a glance whether it’s good law on which to base your legal argument.” And while that is sometimes true, one is led to believe that Keycite always will inform a researcher whether a case is still “good law” at a glance, but this is obviously untrue. It will sometimes inform a researcher whether a case is still “good law” at a glance; other times it will avoid the issue altogether. So while I can understand the policy of Westlaw editors as to when and why they will display status flags in the manner they do, I take great issue with the way that Keycite is marketed to consumers, especially law students. We at Duncan School of Law have the luxury of spending an entire 90 minutes (or more) talking about citators with everyone in the first year class, and to make these precious distinctions as to what citators actually do as opposed to what we are led to believe they do, but I know that such time to educate and illuminate law students does not exist for many (if not most) institutions – and heaven forbid students’ only (or majority of) instruction on electronic legal research tools comes from the vendors themselves.
At least Shepard’s identifies that there is “possible negative treatment” when it comes to Napier. While, in reality, there is severe negative treatment by Heller in the case of Napier, one can at least get an indication that Napier might be problematic for the researcher with a mere glance.
And then there is Fastcase’s Authority Check (which provides no indication of courts’ treatment of cases, but nor does it claim to do so). However, what I expect from Fastcase is that when I look to see if a case has ever been cited (at least by a published United States Court of Appeals case) it will tell me so. And Fastcase too has failed me with regard to Heller. Since Heller, there have been quite a number of published, as well as unpublished, cases citing Heller. See, for example, State v. Turnbull, 766 N.W.2d 78 (Minn.App. 2009); Bruley v. Village Green Management Co., 592 F.Supp.2d 1381 (M.D.Fla.2008); United States v. Marzzarella, 595 F.Supp.2d 596 (W.D.P.A. 2009); Maloney v. Cuomo, 554 F.3d 56, 58+ (2d Cir. 2009). But Fastcase indicates, through its Authority Check, that there are no cases within its database which cite to Heller. And that is true. I did a check, and contained within their database were no cases which cite to Heller. The problem, however, is that such case do exist; and some of those cases were decided as early as September 2008. See, United States. v. Knight, 574 F.Supp.2d 224 (D.Me. 2008).
So in the end, Shepard’s truly helps the legal researcher when it comes to District of Columbia v. Heller, 128 S.Ct. 2783 (2008) even though it is certain that after the Heller decision, Napier is no longer good law. And so for warning us to be cautious when using United States v. Napier, I thank you, Lexis; but I’ll be keeping my eye on you too.
But watch out legal researchers, and be forever fastidious in your endeavors because what a product promises and what a product delivers are not the same thing. Perhaps Westlaw and Fastcase ought to be held to the same ethical obligations as lawyers often are. See Model Rule of Professional Conduct 1.1.
David C. Walker, Information Services Librarian, Lincoln Memorial University, Duncan School of Law Library
Editor's Note: Unfortunately this isn't the first time David Walker has had an episode of citator blues. Back on June 12, 2009, he reported that he had been waiting some two weeks for Keycite to reflect that Michigan v. Jackson, 475 U.S. 625 (1986) had been overruled by the US Supreme Court's May 26, 2009 decision in Montejo v. Louisiana. See his LLB post Maybe Westlaw thinks Scalia was wrong, but… which caught the attention of both Keycite and Shepard's editors, obviously for different reasons.
BTW, I'm delighted to announce that David is joining LLB as a contributing editor. I, for one, can't wait to read his future posts. [JH]
Great article, very interesting and well written. It seems almost impossible to know if you really have all the information.
Posted by: Sheila M Baldwin | Sep 1, 2009 6:16:55 PM
Several years ago, a search I conducted pulled up Dred Scott v. Sandford, 60 U.S. 393 (1857). I can't remember whether I was using Keycite or Shepards, but I do remember that I was shocked to see that it only had a yellow flag or yellow traffic light--even though we fought a civil war over the issue of slavery. I just checked the case on Keycite and found that it has a red flag--but NOT because the U.S. Supreme Court has overruled it, but because several lower courts have acknowledged that it has been superceded by a constitutional amendment. I haven't checked the case in Shepards.
Posted by: John Hightower | Aug 31, 2009 6:51:27 AM