INTRODUCTION TO SECONDARY SOURCES

Fifth Hour Legal Research Fall 2014

PRIMARY VS. SECONDARY

AUTHORITY

• Primary (statutes, cases, regulations, constitutions) o Statements of law formulated and authorized by

government institutions

o “Contains the Law”

o Examples: case law, statutes, executive orders, constitutions, administrative regulations

• Secondary (“Commentary”)

o Statements about the law used to explain, interpret, develop or locate primary authorities

o “Explains the law”

o Examples: treatises, legal encyclopedias, restatements, law reviews

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MANDATORY VS. PERSUASIVE

“AUTHORITY”

Primary Authority

Mandatory precedent

Court must follow as binding

Persuasive Precedent

Court may follow -- but not binding Secondary Authority

Persuasive Precedent only

not formulated by courts or government

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“BASIC” OVERVIEW OF THE PROCESS OF LEGAL RESEARCH

• Familiarize yourself w/area of law o If unfamiliar with the law, usually start with

secondary sources • Locate, read and analyze primary

authority o Cases, statutes, administrative regulations

• Update primary authority to make sure still “good” law o Citators – used to confirm that the law you’re

reading is still good law. • Revise as necessary, and find additional

primary or secondary authority o Depends on what you find initially o Constantly evolving process as you sort

through issues

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Why Start with Secondary Sources? Gateway to primary authority

START WITH SECONDARY SOURCES:

TYPES OF SECONDARY SOURCES

• This class: o Legal Encyclopedias

o Treatises (including Hornbooks)

o Restatements

o American Law Reports (ALR)

o Law Reviews & Legal Periodicals

• Additional types: o Form books

o Dictionaries

o Uniform Laws & Model Acts

• This list is not exhaustive!

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HOW DO THE TYPES OF SECONDARY SOURCES DIFFER FROM EACH

OTHER?

• Specificity of coverage

• Depth of coverage

• Which secondary source you choose determined by stage of research you’re at as well as what you’re looking for from the materials

• You will usually need to look at several secondary sources to determine what law applies to your research plan

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Finding Secondary Sources

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• Annotated statutes • Other secondary authority • MORRIS: Search by keyword, title, word or author. • Westlaw and Lexis •Treatise Finders

ENCYCLOPEDIAS

• Broad coverage

• Alphabetical arrangement (usually) of topics

• Main topics divided into subtopics

• Individual articles usually assigned section numbers

• Two main national Encyclopedias o Corpus Juris Secundum

o American Jurisprudence

• Footnotes usually give citations to cases and statutes (primary authority).

• Updated: Often by annual Pocket Parts

• When/Why/Why Not?

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ALRs

(American Law Reports) • Articles (called “Annotations”) that focus on a

narrowly defined legal issue.

• Provides exhaustive coverage across multiple

jurisdictions.

• If available, ALRs are helpful for pulling together

primary sources such as cases and statutes from

multiple jurisdictions.

• Important to update.

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TREATISES

• Treatise = commentaries on a single area of

law written by legal scholars and practitioners.

• Types of Treatises

o Student Oriented • Usually at least one for every major area of law in law school.

• Hornbooks = treatises aimed at students; helps clarify concepts

o Practitioner Oriented

• Treatise Finder

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RESTATEMENTS

• Written by a group of experts in a particular field of law, and only covers some common law topics.

• Provides “black letter law” / common law (torts, contracts, agency, property, etc.) and considered most authoritative of all secondary sources and routinely cited by courts.

• When considering using as persuasive source, research as to whether your jurisdiction already follows particular restatement rules for that topic.

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LAW REVIEWS

• Often very scholarly and theoretical on current or “cutting edge” issues

• Tons of footnotes with lots of references to primary as well as secondary authorities

• Usually easiest to find online by searching electronic database.

• Law review citation example: o Mark Latham, The Rehnquist Court and the

Pollution Control Cases: Anti-Environmental and Pro-Business? 10 U. PENN. J. OF CON. LAW 133 (2007).

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SECONDARY SOURCES REVIEW

• Aimed at different audiences

• Variety of formats

• Usually good for beginning of research

• Depth of coverage

• Multiple Access Points o Index, Table of Contents, Outline, Etc.

• Refer / Cross Reference to Primary Authority

• Need to update o Source & Primary Authority

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