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The flags in our case files that are not on point

| Tuesday, November 16, 2021

Whether I’m preparing a bench memo for an upcoming case at the Wisconsin Supreme Court for Justice Brian Hagedorn, backing up a hot take I’m putting in my scholarly writing or giving myself extra context on the readings I’m doing for my law school classes, two things are always a given. First, I’m going to be reading cases, and second, I’m going to be using a research database to look those cases up, view them and analyze them. Every law student will tell you that there are two major players in the research database game: Westlaw and Lexis. Ask any particular law student, and I guarantee he or she will have an opinion as to which one is better. In the interest of full disclosure, I myself am a strong Lexis partialist, but this column is not an advertisement for my preferred database service. I will give Westlaw equal time here.

Whether you use Westlaw or Lexis to look up a case, the steps are pretty similar. You search for the case you want (using the reporter citation if you have it), the database either takes you directly to the case text or lists the cases it thinks are close to what you’ve searched for, you pick the case you were actually looking for (or try a different way of finding it if your search was close but no cigar) and then you check the icon at the top-left corner. Both Westlaw and Lexis have this little icon (Westlaw calls it KeyCite; Lexis calls it Shepardizing) that strives to tell you whether there are any cases that give your case “negative treatment.” For instance, Plessy v. Ferguson, the Supreme Court case that allowed public accommodations to be segregated under the doctrine of “separate but equal,” gets a red octagon on Lexis or a red flag on Westlaw. Red, on either service, means that your case’s main upshot has been directly overruled by later precedent (for Plessy, that’d be Brown v. Board of Education). But there are other ways that a case is flagged, on either service, as having received negative treatment. A yellow triangle on Lexis or a yellow flag on Westlaw mean a bit of due diligence is required. On either service, yellow means either that a side proposition of the case has been overruled or that other courts have strongly criticized the reasoning behind an opinion. Either way, it’s a signal from your preferred research database that you should proceed with caution if you intend on relying on the case you’re looking at for anything important.

But oftentimes, these yellow flags end up being a nothingburger. When a case I’m looking at is yellow-flagged, the first thing I do is check why Lexis or Westlaw decided to yellow-flag it. If a case has been yellow-flagged for criticism from a different court, it matters who’s doing the criticizing and why. Say the 7th Circuit doesn’t like a 6th Circuit opinion – that doesn’t really matter, since neither jurisdiction controls the other. If I’m dealing with something in the 6th Circuit, I can use that yellow-flagged case with no fear that it’s not good law, at least in Michigan, Ohio, and Kentucky. But if the Supreme Court is issuing the critique… well, that’s a different story. Likewise, when a higher court has overruled a side proposition, it matters what side proposition the court is overruling. If I’ve got an important constitutional law case, but a principle of civil procedure got clarified on appeal, the lower court opinion is still just as important for what I’m using it for, even though it’s been yellow-flagged. But I might not want to use that case as the latest and greatest example of good Civ Pro jurisprudence if a higher court has criticized the opinion on exactly those grounds.

I submit to you, dear reader, that we can and should view our relationships with other people along similar lines. As a matter of fact, I argue that each and every one of us has a yellow flag. The ubiquity of excuses for concluding that it is difficult to love ourselves and our neighbors as brothers and sisters in Christ is absolutely striking. And sometimes there are people that, for our own weird personal reasons, just plain don’t vibe with us. Those weird personal reasons are when the yellow flags of the lives of others are germane to our own lived experience. But the vast majority of the time, to steal a cliché from the legal research lexicon, “that yellow flag is not on point.” Is someone giving you grief for an idiosyncrasy that makes people think you’re kind of crazy? Find the people in your life who will find those idiosyncrasies crazily beautiful. Does your friend have a habit that’s ever so slightly annoying? Ninety-nine times out of 100, you end up remaining friends with that person in spite of the fact. Just like court cases on Westlaw or Lexis, we have just as many good reasons for handwaving not-on-point critiques of our friends as the critiques themselves and it is through this extension of grace that we build community, foster friendships and acknowledge each other’s humanity as not only a weakness but a strength.

But it gets better, because as Catholics, each of us has a glaring red octagon in our case file. Something about our lives, the very thing that identifies us with the human condition, has been overturned: the stain of original sin. Since Baptism wipes away the stain of original sin, we who have been baptized have seen this overbearing aspect of our human identity overturned in a very meaningful way. The Sacrament of Baptism’s indelible mark upon the soul is to overturn the stain of original sin and render us the children of our heavenly Father that we were created to be.

I had the opportunity, this weekend, to reunite with fellow law students from all across the country, friends I made this summer as I discerned, with them, the ways that I can integrate my life in the legal profession with my faith. As we were talking about how the fall semester had been going, it became clear that I was in a room with a bunch of people, all of whom have yellow and even red icons on their case files. But just like when researching a case, that’s never the end of the story. And while no yellow flag was able to stop me from embracing these friends of mine as the brothers and sisters in Christ they are, it was the red flags, the ones that note our identity as entrenched in sin has been erased, that made me most grateful to be in their company. As we go about this week, may we seek that grace where it may be found, embrace our friends in spite of their not-on-point yellow flags and because of their red ones and acknowledge the presence of God where two or three are gathered.

Devin is a member of Notre Dame Law School’s class of 2023. Originally from Farwell, Michigan, he is a 2020 graduate of Michigan State University’s James Madison College. In addition to serving as a teaching assistant at the law school, in his free time, he sings with the Notre Dame Folk Choir and discusses the legal developments of the day with anyone who will listen. He can be reached at [email protected] or @DevinJHumphreys on Twitter.

Editor’s Note: This piece initially incorrectly shortened Devin’s bio. It has been updated to reflect his bio in full.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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