LAW 535 Environmental Law

Noting up a case describes the process of researching the history and treatment of a case to determine if it is good law and to place it in context. To note up a case, one must consider its judicial treatment, or subsequent consideration by the courts. Has it been followed? Distinguished? Did it establish precedent, and where is the court situated? One should also consider its judicial history, or progress through the courts. No one wants to rely on a case for their argument in class - or in court - only to find out that the case they rely upon has been overturned. Given how essential noting up is to legal research, it should be done with every case you will rely upon. Thankfully, the process of noting up is straightforward, although interpreting the treatment of a case requires some detailed reading and understanding of the legal issues at hand.

Noting up cases online is best done with a citator:

• Westlaw has a citator called Keycite. Information on how to use Keycite is available from the Thomson Reuters Learning Centre.
• LexisNexis Quicklaw has a citator called Quickcite. Information how to use Quickcite is available through this short video and their advanced user guide.

Although CanLII has made some improvements in recent years to how it shows treatment, it is not as comprehensive as Westlaw or Quicklaw and should not be relied upon for noting up. CanLII does indicate depth of treatment through its jalapeno icons, which can be useful for determining legal cases of intense debate.

Some considerations when noting up a case:

• Legal cases often consider more than one issue, and as a result they can receive negative treatment on one issue while the other issues remain good law. For this reason it is important to note up carefully and not rely too heavily on citator indications of negative treatment
• Citators will often differ in how they describe case treatment. Compare and contrast Westlaw and Quicklaw for important cases
• With American case law, noting up is referred to as "shepardizing"
• Noting up a case can produce a narrative of how primary law has evolved over time through the courts

What does it mean to say that a case has received positive or negative treatment? Generally, positive treatments see cases being followed and are highly cited, while negative treatment sees cases expressly overruled, reversed, or not cited. While each of these terms is more nuanced, KeyCite offers a basic definition of treatment terminology: 

Followed - Principle of law in cited case adopted or decider's reasoning applied.
Distinguished - Cited case inapplicable because of difference in facts or law.
Not Followed - Cited case expressly overruled, not applied or judged to be bad law. Some consideration given to cited case.
Considered - Some consideration given to cited case.
Referred To - Cited case being referred to without comment.
Reversed in Part - Reviewing court or tribunal allowed appeal with respect to some issue(s) in cited case but dismissed appeal with respect to others.
Reversed on reconsideration - Application for reconsideration of cited case allowed and earlier decision nullified.
Affirmed on reconsideration - Application for reconsideration of cited case allowed but earlier decision confirmed.
Varied - Decision of the lower court was substantially affirmed, but subject to a variation in the judgment.
Varied on reconsideration - Application for reconsideration of cited case allowed and some aspect of earlier decision altered.
Setting aside/quashing appeal - Appellate court declares that the appeal is a nullity.