INTRODUCTION TO SECONDARY SOURCES

Fifth Hour Legal Research Fall 2013

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

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 o Cases, statutes, administrative regulations

Locate, read and analyze primary authority

Update primary authority to make sure 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

o Citators used to confirm that the law youre reading is still good law.

Why Start with Secondary Sources? Gateway to primary authority

TYPES OF SECONDARY SOURCES

This class:
o o o o o Legal Encyclopedias Treatises (including Hornbooks) Restatements American Law Reports (ALR) 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 youre at as well as what youre 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

Annotated statutes Other secondary authority MORRIS: Search by keyword, title, word or author. Westlaw and Lexis
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ENCYCLOPEDIAS
Broad coverage Alphabetical arrangement (usually) of topics Main topics divided into subtopics Individual articles usually assigned section numbers Two main national Encyclopedias Footnotes usually give citations to cases and statutes (primary authority). Updated: Often by annual Pocket Parts When/Why/Why Not?
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o Corpus Juris Secundum o American Jurisprudence

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 and considered most authoritative of all secondary sources according to PLR, 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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