I’ve always thought it was funny that WestLaw handed out yellow flags like they were candy. I’m referring, of course, to “KeyCite Status Flags,” the shorthand notation given to each case to signal whether it has some negative history, is bad law, or has direct history.

  • Red Flag: “In cases and administrative decisions, a red flag warns that the case or administrative decision is no longer good law for at least one of the points of law it contains.”
  • Yellow Flag: “In cases and administrative decisions, a yellow flag warns that the case or administrative decision has some negative history but hasn’t been reversed or overruled.”
  • Blue H: “In cases and administrative decisions, a blue H indicates that the case or administrative decision has some history.”
  • Green H: “In cases and administrative decisions, a green C indicates that the case or administrative decision has citing references but no direct history or negative citing references.”

The common perception is that, for whatever reason, WestLaw gives yellow flags to a disproportionate number of cases. I thought I’d look at cases from OT10, most of which were decided in the last twelve months.

October Term 2010 Merits Cases

Yellow 56 70%
Blue H 24 30%

As it turns out, WestLaw actually does give out yellow flags to a large percentage of cases. Considering that these cases were decided by the highest court in the land within the last twelve months, it is pretty remarkable that so many of them already have “some negative history.” Go figure.

My next step is to look at cases from OT08 and OT09 to see how the trend shifts over time. I’d also like to look at the cases that cast doubt upon Supreme Court cases to see where they arise and to find the average length of time between a Supreme Court opinion and its first diminishing case.



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