As discussed in more detail in the section of this guide pertaining to Cases: Validating Your Research, it is critical that you validate your research to ensure that the primary source authority you are relying upon is still good law. Statutes can get amended. Courts can declare statutes unconstitutional. To confirm that your statute remains valid, you must use a citator.
The citator in Westaw is KeyCite®, and the citator in Lexis is Shepard's®. Each of these services are quite good, but both are fallible. Each is only as good as its algorithm and its editors. For most statutes, it is fine to rely on one service. However, if it is a statute that is frequently amended and/or relates to a topic where there is pending legislation, you may consider running it through the other citator to double check that the statute remains good law.
When the citator reveals negative authority for your statute, you must READ THE MATERIALS to determine the extent on which you can rely on the statute. When cases declare statutes invalid, frequently only a portion of the statute is at issue, with the remaining portions remaining valid and controlling. Or a statute may be held unconstitutional only when applied to a limited set of circumstances. There may be pending legislation that could effect your statute, but it may be that the legislation is unlikely to get passed. Reviewing the negative authorities will help you determine the extent to which the statute is controlling law.
KeyCite® is the citator in Westlaw. KeyCite, quite literally, flags statutes that are not good law.
When you pull up a statute in Westlaw, if you see a red or yellow flag, that means that there is negative treatment for that statute. A red flag indicates that the statute has been amended, repealed, superseded, or held unconstitutional in whole or in part. A yellow flag indicates other negative treatment.
These flags can be very helpful, but in order to confirm the validity of you statute, you also should review the statutory history provided by KeyCite, regardless of whether or not your case has been flagged. When you are in a statute in Westlaw, there are tabs that appear immediately toward the top of the document that give you information about the statute. One of these tab is "History." When you click on the History tab, select the catagory "Validity" to see materials that may effect the validity of your statute.
For example, when you pull up a statute with negative treatment in Westlaw, you may see something that looks like:
Per these flags, there is one case that held the statute unconstitutional, and there is proposed legislation that may effect the statute. However, the information that is offered on this page is limited. To see more, select the "History" tab, which will open up a menu that looks like:
Select "Validity" from this menu to get a report identifying the authority that may call the validity of your statute into question.
As discussed above, you should not assume that your statute is not valid simply because there is negative authority. You must read the negative treatment cases and review the available information for the pending legislation. If you were to read the cases that held the statute unconstitutional, you would see that it applies only when the defendant is a state. Otherwise the statute is valid. Similarly, the other negative treatment cases do not compromise the validity of the statute under most circumstances. If you were to review the proposed legislation section of the report, you would see that there has not been much legislative activity on any of the pending bills. Accordingly, to date, your statute remains good law.
For more information on using KeyCite, see the Westlaw User Guide for Checking Citations in KeyCite, and other tutorials available from the Westlaw Training & Support Center.
Shepard's® is the citator in Lexis. Shepard's can be used to determine whether a statute remains good law.
When you pull up a statute in Lexis, there are indicators that appear next to the statutory citation to signal if there is negative treatment for the statute. A red circle with a question mark in it indicates that a statute has strong negative treatment. An orange box with the letter "Q" inside means that the validity of statute may be in question, and a yellow triangle means that a statute has other negative treatment. For more information about these and other signals, see the Lexis Advance Help Guide on Shepard's Signal ™ Indicators.
In order to generate a report, when you are in a statute, to the right of the statutory citation, as can be seen below, there is a box marked "Shepard's®" with links for "Pending Legislation" and to "Shepardize® this document."
You must look at both the pending legislation and the Shepard's report to confirm that your statute remains good law.
When you access the Shepard's Report, you will see a box on the left with the heading "Analysis." That box identifies if there are cases that negatively treat your statute.
For example, if you pull up the Shepard's report for the above statute, you would see:
The Analysis for this case identifies that three cases have held the statute unconstitutional in part. To see these cases, select "Warning" or "Unconstitutional in part by" to get to a list of the cases, with links to each case.
Once you have identified cases that negatively treat your statute, as discussed above, you must read the cases to determine the extent to which your statute is controlling.
To see the pending legislation for your statute, select "Pending Legislation" from either the statute or the Shepard's report. Review the list of pending legislation to see if any have been passed or seem likely to pass. For such bills, click on the links provided to read the text of the bill to determine how it will/may effect your statute.
For more information on using Shepard's, see the Lexis Help page "Using the Shepard's® Citation Service."