By Jamie Baker, Associate Director of the Law Library at Texas Tech University School of Law.
A question that comes up pretty often from law students in legal writing classes is, “how do I know which cases to cite?”
This is a good question and one that really depends on the cases that are found during
the research process.
An article by Douglas K. Norman titled “The Art of Selecting Cases to
Cite” in 63 Tex. B. J. 340 (Apr. 2000) does a wonderful job of
discussing how to select cases to cite.
From the article:
“Most legal writers seem to have developed an instinct for which cases
to pick and which to discard. Moreover, the considerations that the
writer consciously or subconsciously brings to bear on which cases to
include in legal citation are more complicated than merely citing to the
most recent case from the highest court. These considerations probably
begin with an informal categorization of all the cases found in the
process of researching a given issue.”
The article goes on to discuss categorizing cases. “The cases
supporting a given proposition of law might roughly be categorized as
follows:
Seminal Case–This is generally the first case from the highest
court to have decided the issue and stated the proposition of law in
question. If the proposition was itself a reversal or revision of
earlier authority, the seminal case is the reversing or revising case.
As the first case to have stated the proposition in question, the
seminal case has generally gone into some depth in analyzing the issue
and the court’s rationale in a manner that might not be repeated in
later cases.
Parroting Cases–With a common proposition of law, numerous
cases will have simply parroted the language of the seminal case, adding
little or nothing to the analysis.
Bolstering Cases–In addition to parroting seminal authority,
the bolstering case adds new reasoning and analysis to support the
underlying proposition of law.
Reformulation Cases–These cases take the proposition of the
seminal case and either restate it in different terms or refine the
analysis in some way that may be more or less helpful to the reader.
When, for example, the seminal case was written in the legalistic jargon
of the past, the reformulation case may delete the jargon and restate
the proposition in plain English.
Pseudo-Seminal Case–When the seminal case has been forgotten
or lost in the chain of citation, a more recent case will often emerge
as the one most courts presently cite as the oldest or most reliable
case to support the given proposition. This case effectively takes the
place of the lost seminal case.
Companion Cases–As I use the term here, companion cases (not
to be confused with the more technical use of this term) are parroting
cases that have over time been so consistently cited together with the
seminal (or pseudo-seminal) authority that they achieve a certain
perceived legitimacy and it would now seem awkward to break the habit of
citing the companion case together with the seminal authority.
Parallel Cases–Occasionally, separate lines of authority for
the same proposition develop without any common source; or, perhaps more
likely, the original source or seminal case is buried so far back in
the chain of citation that it has been all but forgotten. This then
leads to two or more lines of cases standing for the same proposition,
with different courts typically preferring one or the other of the
parallel lines of authority.
Storehouse Cases–It sometimes happens that, when there are
multiple parallel cases with no clear seminal or pseudo-seminal case to
which they all refer, somewhere down the road a particular case will
attempt to collect or “storehouse” all of the parallel lines. If this
storehouse case is reliable, it is a prime candidate to be cited from
then on as pseudo-seminal authority.
Application Cases–Some cases that have only marginal value as
support for an abstract proposition of law, have great value in their
application of the proposition to facts similar or analogous to the
facts of your own case.”
After categorizing cases, it is time to select the cases to cite. The article offers guidelines for selection:
- Provide Both Seminal and Recent Authority
- Generally Omit Parrots
- Use Vertical Strings To Show Continuity Within a Court
- Use Horizontal Strings To Show Continuity among Courts
- Reconcile Parallel Lines of Authority
- Use Bolstering and Reformulation Cases to Strengthen and Better Explain
- Use Application Cases For Similarity and Analogy
Selecting the proper cases is part of the underlying analysis
required of the legal research process. As the author notes, improper
case selection may cause the reader to reject the underlying legal
proposition, which could be the death knell for a case.
Jamie Baker "The art of selecting cases to cite" (3 April 2018) <
https://texastechlawlibrary.com/2018/04/03/the-art-of-selecting-cases-to-cite/>
