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

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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 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 you’re reading is still good law.

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Why Start with Secondary Sources? Gateway to primary authority

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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 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
• 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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