The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 1998 Shepardizing English Law Stephen E. Young The Catholic University of America, Columbus School of Law Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Legal Writing and Research Commons Recommended Citation Stephen E. Young, Shepardizing English Law, 90 L. LIBR. J. 209 (1998). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. "Shepardizing®" English Law* Stephen E. Young** Young explores the use of noter-up resources for English legal materials, with an emphasis on case law and statutory citators. He also describes the online tools that can be used as citator services. One of the most confusing aspects of English legal research for American researchers is determining what is, and what is not, "good" law. Researchers in the United States may have a basic grasp of where to turn to locate the text of an act of Parliament or the report of a case from the High Court,' but finding whether the act has been amended or repealed or the case overturned is not so easy. This is troubling because researchers know that finding the authority is only the first step-once located, it is essential to determine whether it is still good authority. In the United States, legal researchers and librarians are weaned on the citator services offered by Shepard's Citations.Begun in 1873, Shepard's has grown over the past century into a legal institution.2 It is the tool used by virtually everyone to determine the history and treatment of a case, a legislative enactment, a court rule, or even a law review article.3 However, once one makes the bibliographic journey across the Atlantic Ocean to the United Kingdom and becomes immersed in the world of English legal research, Shepard's is left behind, and American researchers are faced not only with introducing them- selves to new tools, but also to a new research technique-noting up. Noting Up In the United Kingdom, the term "noting up" traditionally refers to the process of determining the authority of a case or statute based upon its subsequent * ©Stephen E. Young, 1998. ** Collection Management Librarian and Jamail Fellow, Jamail Center for Legal Research, Tarlton Law Library, University of Texas at Austin, Austin, Texas. 1. There are many excellent guides to legal research in the United Kingdom which can assist librarians or researchers in their efforts to locate primary legal materials. In particular I recom- mend JEAN DANE & PHILIP A. THOMAS, HOwTO USE ALAw LIBRARY (3d ed. 1996); GuY HOLBORN, BUTrERwORTHS LEGAL RESEARCH GUIDE (1993); and PETER CLINCH, USING A LAW LIBRARY: A STUDENT'S GUIDE TO LEGAL RESEARCH SKILLS (1992). 2. See Brian H. Hall, Shepard'slMcGraiv-Hill,LEGALREFERENCESERVICES Q., No. 3/4, 1991, at 121. 3. See J. MYRON JACOBSTEIN ET AL., FUNDAMENTALS OF LEGAL RESEARCH 323 (6th ed. 1994). Law Library Journal [Vol. 90:2 treatment by other cases or statutes-what American researchers refer to as "shepardizing." Unlike American legal research, however, there is no single repository of judicially noted information such as Shepard's Citations for English legal authorities. In large part this is due to the potentially vast time period that would need to be covered by a single service.4 Until 1947, in fact, there was no serious attempt in English legal publishing to produce a current 5 citator service. The need for information about the history and treatment of English legal authority does not differ greatly from the similar need in the United States, except in relation to statutory law. The legal concepts of "precedent" and "persuasive authority" play a central role in English case law, and, with the notable exception of the House of Lords, 6 the courts are bound by the applica- tion of these concepts in their treatment of other cases just as in the United States.7 Noter ups do play a different role in the judicial treatment of statutory law. Unlike their treatment of case law, the courts in England and Wales have no authority to declare an act of Parliament ultra vires, meaning an act cannot be judged to be outside the powers granted to Parliament.' The courts may only provide an interpretation of the statute.9 Legislative supremacy, or the sover- eignty of Parliament, is "under the English constitution, the right to make or unmake any law whatever; and further that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament."' 0 However, legislation that pertains to England and Wales can no longer be considered in isolation. The entry of the United Kingdom into the European Community in 1973 required that Parliament "surrender" a part of its sover- eignty, and in so doing it recognized the supremacy of community law over national law.11 Therefore, the potential exists for a case from an English court or an act of Parliament to be "noted up" by legislation or case law from the European Union. To simplify the description of the noter-up services available for English 4. Court reporting has existed in England, in one form or another, since the late thirteenth century and the reign of Edward I. 5. See ELIZABETH Moys. LAW LIBRARIANSHIP 160 (2d ed. 1987) for a description of the pre-1947 case citators. 6. The House of Lords is not required to follow its previous decisions. The House of Lords Practice Statement, [1966] 1 W.L.R. 1234. 7. See EMLYN C.S. WADE & ANTHONY W. BRADLEY. CONSTITUTIONAL AND ADMINISTRATIVE LAW 16 (lIth ed. 1993). 8. See HENRY C. BLACK, BLACK'S LAw DICTIONARY 1365 (5th ed. 1979). 9. See WADE & BRADLEY, supra note 7, at 17. 10. ALBERT V. DICEY. THE LAW OFTHE CONSTITUTION 39 (10th ed. 1959). 11. The House of Lords ruled on community supremacy in R. v.Secretary of State for Transport, ex parte Factortame, [1991] 1 A.C. 603, 658-59. 1998] Shepardizing English Law legal research, it is best to concentrate first on case law research and then move to statutory law. Case Law Once a case is located,"2 we need to determine the validity of this case by using a citator service. In English legal research this will probably mean turning to one or more of the Current Law publications of Sweet & Maxwell. Current Law is comprised of a number of different services: Current Law Monthly Digest, Current Law Yearbook, Current Law Statutes, and two citators, the CurrentLaw Case Citatorand the CurrentLaw Legislation Citator. The Monthly Digest is the basic component of the series, and, as its name suggests, it is published on a monthly basis. This essential tool of English legal research contains a subject digest to case law, legislation, and delegated legislation (the English term for administrative law). It also includes numerous finding aids such as a cumulative case name index, a progress of bills section, and a table of commencements. The Current Law Yearbook is the annual cumulation of the digests pub- lished in the CurrentLaw Monthly Digest. Unlike the monthly publication, the Yearbook does not contain the various tables and indexes. CurrentLaw Statutes provides the full text of public general acts arranged in chapter number order together with useful annotations and commentary. The two citator services, Current Law Case Citator and Current Law Legislation Citator, provide treatment and history of case law and statutory law. The Case Citatorand the Monthly Digest are the most relevant components of the CurrentLaw services for the purposes of "noting up" case law. In order to effectively use these services, it is necessary to complete one or more of the following steps.13 For coverage of citations made in the current year, check the cumulative table of cases in the most recent issue of Current Law Monthly Digest. Unlike Shepard's, which is arranged by case citation, these tables are arranged alphabetically by case name. For cases that were cited sometime during the year, a date and numbered entry indicating in which month's issue the case was cited will be provided. Researchers should note that references to a digest of the original case are identified by capital letters, whereas references to digests of citing cases are identified by lowercase letters. Once 12. There are a number of excellent guides to English legal research that cover in great detail the methodology and tools used in locating cases. See, e.g., DANE & THOMAS, supra note 1, at 27. 13. The need to follow all the steps is dependent on the age of the case under scrutiny. For instance, more recent cases will not be included in bound volumes for 1947-95, so checking those volumes obviously can be omitted. Law Library Journal [Vol. 90:2 the entry has been located, a digest of the citing case will be provided, which will include the treatment of the case being noted up. • Check the cumulative table of cases in the December issue of CurrentLaw Monthly Digest for years not yet incorporated into the bound citator vol- umes. • If the case being noted up is not a very recent one, check those among the three Current Law Case Citator volumes that might be appropriate (the volumes cover the periods 1947-76, 1977-88, and 1989-95). One of the most common mistakes is to assume that the only cases covered by the citators are those that have been decided since 1947, as that is the date Current Law began publication.