Friday, August 25, 2006

Research Tip: Is It Still Good Law?


One of the most important steps in any legal research project is determining whether the statutes, regulations, and cases that you want to cite are still "good law." This process goes by a number of terms: updating, cite checking, verifying, or validating. You may also hear it called Shepardizing or KeyCiting, after the two big citators. These terms always include, at a minimum, determining whether the authorities you cite are still applicable and current.

Whether something is good law, and how you make that determination, depends on the type of authority that you want to cite. We will cover how to determine if an authority is still good law when we cover each different type of authority, but here is an overview.

A statute cannot be good law if it has been repealed or declared unconstitutional. A regulation cannot be good law if it exceeds the statutory delegation of authority or is inconsistent with the authorizing statute. A case cannot be good law if it has been reversed or overruled, or if the statute on which it was based has been changed.

To determine whether a statute is still good law, you need to check when the statutory code you are using was last updated, and then check the session laws for statutes enacted since that update. For statutory codes in print, check the pocket part or supplemental pamphlets shelved with the code. You must also check to see if any cases have held the statute to be unconstitutional.

The process for determining whether a regulation is still good law is similar to the process for statutes. Although publishing schedules and arrangements vary from state to state, generally you must check when the regulatory code was last updated, and then check the register for regulations adopted since that update. You must also check the authorizing statute, as described in the previous paragraph.

To make sure that a case is still good law, you must check to see if any subsequent cases have reversed or overruled it. See our research guides on citators. You must also check the statutory code to see if any statutes enacted since the case was decided have changed the common law or statute on which your case was based.

Legal resources on the web can be at least as out-of-date as print resources, and it can be difficult to tell when they were last updated. Check carefully to be sure you know when the law on a website was last updated, not just when some feature of the site was updated. See Evaluating Websites and Other Information Resources.

Making sure that the statutes, regulations, and cases are good law is a lot of work, but it is much better than relying on research that may no longer be current or applicable.

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