1.2 Secondary sources of law
10 min read•august 21, 2024
Secondary sources are essential tools in , offering valuable insights and context for primary law. They include , encyclopedias, , and restatements, each serving unique purposes in legal analysis.
These sources provide explanations, historical context, and trend analysis, helping researchers understand complex legal issues. While not binding, secondary sources can be persuasive, with their authority varying based on factors like author reputation and court preferences.
Types of secondary sources
- Secondary sources in legal research provide commentary, analysis, and interpretation of primary law sources
- These sources play a crucial role in legal method and writing by offering context, explanations, and insights into complex legal issues
- Understanding different types of secondary sources enhances a law student's ability to conduct comprehensive legal research and analysis
Law reviews and journals
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- Scholarly publications produced by law schools and professional organizations
- Contain in-depth articles on specific legal topics written by legal scholars, practitioners, and students
- Often include critical analysis of recent court decisions and emerging legal trends
- Provide valuable insights into evolving areas of law and potential future developments
- Typically peer-reviewed, ensuring high-quality content and rigorous academic standards
Legal encyclopedias
- Comprehensive reference works covering broad areas of law
- Organize legal information alphabetically by topic for easy access
- Provide concise summaries of legal principles and cite relevant primary sources
- Useful starting points for legal research, offering overviews of unfamiliar areas of law
- Popular examples include and
Treatises and hornbooks
- In-depth, authoritative texts on specific areas of law written by legal experts
- Treatises offer comprehensive coverage of a legal subject, including historical development and current state of the law
- Hornbooks provide more concise overviews, often used by law students for exam preparation
- Both sources typically include extensive citations to primary law and other secondary sources
- Valuable for understanding complex legal concepts and identifying relevant case law or statutes
Restatements of law
- Publications produced by the American Law Institute (ALI) to clarify and simplify common law principles
- Synthesize existing case law and statutes into clear, concise statements of legal rules
- Organized by subject area (contracts, torts, property, etc.)
- Widely respected and frequently cited by courts, though not
- Include comments and illustrations to explain the application of stated rules
Legal dictionaries
- Specialized reference works defining legal terms, phrases, and concepts
- Provide precise definitions and explanations of legal language
- Often include etymologies and historical usage of legal terms
- Useful for understanding unfamiliar legal terminology encountered in primary sources
- Popular examples include Black's Law Dictionary and Ballentine's Law Dictionary
Authority of secondary sources
- Secondary sources in legal research hold persuasive rather than binding authority
- Understanding the weight and influence of these sources is crucial for effective legal writing and argumentation
- The authority of secondary sources varies depending on the type of source, author's reputation, and context of use
Persuasive vs binding authority
- Binding authority includes primary sources like constitutions, statutes, and court decisions that courts must follow
- Secondary sources serve as , offering guidance and reasoning that courts may consider but are not obligated to follow
- Courts may find secondary sources more or less persuasive based on factors such as author expertise and source reputation
- Some secondary sources (restatements, highly regarded treatises) carry more weight than others in influencing court decisions
Weight in different courts
- Federal courts may give more weight to federal-focused secondary sources
- State courts often rely more heavily on state-specific secondary sources
- Appellate courts may be more receptive to academic articles and treatises than trial courts
- Specialized courts (tax, bankruptcy) may place higher value on subject-specific secondary sources
- International courts may consider comparative law sources and international legal scholarship
Factors affecting influence
- Reputation and credentials of the author or publishing institution
- Recency of publication and relevance to current legal issues
- Depth of analysis and quality of research
- Frequency of citation by courts and other legal authorities
- Alignment with established legal principles and precedents
- Clarity and persuasiveness of argumentation
Functions of secondary sources
- Secondary sources serve multiple purposes in legal research and writing
- These sources bridge the gap between primary law and practical application
- Understanding the functions of secondary sources enhances their effective use in legal analysis and argumentation
Explaining primary law
- Provide clear explanations and interpretations of complex statutes and case law
- Break down legal concepts into more accessible language for easier comprehension
- Offer context and background information to enhance understanding of primary sources
- Highlight key elements and requirements of legal rules and doctrines
- Illustrate practical applications of legal principles through examples and hypotheticals
Providing historical context
- Trace the development of legal doctrines and principles over time
- Explain the rationale behind changes in laws and legal interpretations
- Offer insights into the social, political, and economic factors influencing legal evolution
- Provide background on legislative intent and the historical circumstances of law-making
- Help researchers understand the origins of current legal rules and their potential future directions
Analyzing legal trends
- Identify emerging patterns and shifts in legal thought and practice
- Compare and contrast different approaches to similar legal issues across jurisdictions
- Evaluate the effectiveness and impact of recent legislative changes or court decisions
- Highlight inconsistencies or conflicts in the application of legal principles
- Provide critical commentary on the strengths and weaknesses of current legal frameworks
Suggesting future developments
- Propose potential reforms or modifications to existing laws
- Predict likely outcomes of pending cases or legislative proposals
- Identify areas of law ripe for change or in need of clarification
- Discuss potential implications of technological advancements on legal issues
- Explore innovative legal theories and arguments that may shape future
Research strategies
- Effective use of secondary sources requires a strategic approach to legal research
- Developing strong research skills is essential for success in legal method and writing courses
- Proper research strategies help law students efficiently locate, evaluate, and utilize secondary sources
When to use secondary sources
- At the beginning of research to gain an overview of unfamiliar legal topics
- When primary sources are ambiguous or conflicting
- To identify relevant primary sources and key cases on a particular issue
- When seeking historical context or policy arguments related to a legal question
- To supplement analysis of complex or evolving areas of law
Finding relevant secondary sources
- Utilize legal research databases (Westlaw, LexisNexis, HeinOnline)
- Consult library catalogs and subject-specific research guides
- Use citation indexes to track influential articles and treatises
- Explore footnotes and bibliographies of relevant primary and secondary sources
- Consult with law librarians for guidance on specialized or hard-to-find sources
Evaluating source reliability
- Consider the author's credentials and expertise in the field
- Check the publication date to ensure currency of information
- Assess the reputation of the publishing institution or journal
- Examine the depth and quality of citations to primary sources
- Look for sources that have been frequently cited by courts or other authoritative works
Citing secondary sources
- Follow proper citation formats as specified in The Bluebook or other citation guides
- Include full bibliographic information for books, articles, and online sources
- Properly attribute quotes, paraphrases, and ideas to their original authors
- Use appropriate signals (see, cf., but see) to indicate the relationship between the source and your argument
- Be consistent in citation style throughout your legal writing
Key secondary sources
- Familiarity with widely-used secondary sources is crucial for effective legal research
- These key sources provide comprehensive coverage of various areas of law
- Understanding the strengths and limitations of each source enhances research efficiency
American Law Reports (ALR)
- Comprehensive articles on specific legal issues, including analysis of relevant cases
- Organized by topic, providing in-depth treatment of narrow legal questions
- Include annotations summarizing and analyzing cases from multiple jurisdictions
- Useful for finding analogous cases and understanding how courts have addressed similar issues
- Regularly updated to reflect new developments in case law and statutes
American Jurisprudence (Am. Jur.)
- Comprehensive legal encyclopedia covering all areas of American law
- Organized alphabetically by topic for easy reference
- Provides concise statements of legal principles with citations to supporting cases and statutes
- Includes practice aids such as checklists, forms, and procedural guides
- Useful for gaining a broad overview of legal topics and identifying relevant primary sources
Corpus Juris Secundum (C.J.S.)
- Another major legal encyclopedia covering both state and federal law
- Offers detailed explanations of legal principles with extensive citations to primary sources
- Includes references to related topics and cross-references within the encyclopedia
- Provides historical background and traces the development of legal doctrines
- Useful for understanding the current state of the law across multiple jurisdictions
State-specific secondary sources
- Practice guides tailored to individual state laws and procedures
- State-specific (California Jurisprudence, Texas Jurisprudence)
- Annotated state statutes with commentary and
- State bar publications and continuing legal education materials
- Local law review articles focusing on state-specific legal issues
Online vs print sources
- The digital age has transformed legal research, offering new tools and resources
- Understanding the advantages and limitations of both online and print sources is essential for comprehensive research
Digital databases
- Offer vast collections of primary and secondary sources in searchable formats
- Provide advanced search features, including Boolean operators and natural language searching
- Allow for easy updating and tracking of new developments in the law
- Enable quick cross-referencing and hyperlinking between related sources
- Facilitate efficient citation checking and verification
Traditional library resources
- Provide access to historical materials that may not be available online
- Allow for serendipitous discovery through browsing related materials
- Offer a tactile experience that some researchers find more conducive to in-depth study
- Provide a distraction-free environment for focused research
- Ensure access to sources that may be restricted or unavailable in digital formats
Advantages and limitations
- Online sources offer speed and convenience but may require subscription fees
- Print sources provide stability and permanence but can be cumbersome to update
- Digital resources enable powerful search capabilities but may lead to information overload
- Traditional libraries offer expert assistance from librarians but have limited hours of access
- Online sources facilitate remote research while print sources are location-dependent
Ethical considerations
- Proper use of secondary sources involves ethical responsibilities for legal researchers and writers
- Adhering to ethical standards ensures the integrity of legal analysis and argumentation
Proper attribution
- Always cite sources for ideas, quotes, and paraphrases used in legal writing
- Follow citation rules to accurately represent the origin and context of borrowed material
- Avoid plagiarism by clearly distinguishing between original work and referenced sources
- Provide sufficient information for readers to locate and verify cited sources
- Acknowledge the contributions of others to maintain academic and professional integrity
Avoiding overreliance
- Use secondary sources as starting points rather than definitive authorities
- Verify information from secondary sources against primary law whenever possible
- Develop independent analysis and reasoning skills rather than simply restating others' opinions
- Recognize the limitations of secondary sources, especially in rapidly changing areas of law
- Balance the use of secondary sources with original research and critical thinking
Balancing secondary and primary sources
- Use secondary sources to guide research but rely primarily on primary law for legal arguments
- Incorporate a mix of authoritative secondary sources to provide diverse perspectives
- Ensure that secondary source usage enhances rather than replaces analysis of primary law
- Be cautious of outdated secondary sources that may not reflect current legal standards
- Consider the appropriate ratio of primary to secondary source citations based on the document type and purpose
Secondary sources in legal writing
- Effective integration of secondary sources enhances the quality and persuasiveness of legal writing
- Understanding how to properly incorporate these sources is crucial for success in legal method and writing courses
Incorporating into legal arguments
- Use secondary sources to provide context and background information for legal issues
- Cite respected authorities to support interpretations of ambiguous statutes or case law
- Utilize secondary sources to demonstrate the broader implications of legal principles
- Reference scholarly articles or treatises to introduce novel legal theories or arguments
- Incorporate historical analyses from secondary sources to illustrate the evolution of legal doctrines
Strengthening persuasive writing
- Use secondary sources to bolster policy arguments and demonstrate real-world impacts
- Cite respected scholars or practitioners to lend credibility to your position
- Reference empirical studies or statistical data from secondary sources to support factual claims
- Utilize secondary sources to anticipate and address counterarguments
- Incorporate analogies or examples from secondary sources to clarify complex legal concepts
Limitations in formal documents
- Exercise caution when citing secondary sources in court filings or formal legal documents
- Prioritize primary law sources over secondary sources in legal briefs and memoranda
- Use secondary sources sparingly in judicial opinions, focusing primarily on binding authorities
- Avoid relying solely on secondary sources for key legal arguments or propositions
- Recognize that overuse of secondary sources may weaken the perceived strength of legal arguments
Key Terms to Review (21)
ALWD Citation Manual: The ALWD Citation Manual is a comprehensive guide designed to assist legal professionals and students in properly citing legal documents and sources in their writing. It emphasizes consistency, clarity, and the importance of accurate citations in legal writing, making it a crucial resource for ensuring that legal arguments are well-supported and easily verifiable.
American Jurisprudence (Am. Jur.): American Jurisprudence (Am. Jur.) refers to a comprehensive legal encyclopedia that encompasses principles, rules, and case law pertaining to the legal system in the United States. It serves as an essential secondary source of law, providing practitioners, scholars, and students with summaries of legal doctrines, statutes, and judicial interpretations across various fields of law.
American Law Reports (ALR): American Law Reports (ALR) are a series of legal publications that provide comprehensive summaries of case law, commentary, and analysis on specific legal issues. These reports are categorized by topics and aim to assist legal practitioners and researchers in understanding and applying the law effectively by offering in-depth discussions of significant cases and their implications.
Amici curiae briefs: Amici curiae briefs are documents submitted to a court by non-parties, often referred to as 'friends of the court,' to provide additional information, perspectives, or arguments relevant to a case. These briefs can significantly influence judicial decisions by presenting expert insights or broader implications of a legal issue, often representing public interest groups, professional organizations, or government entities.
Binding Authority: Binding authority refers to legal sources of law that must be followed by courts and lower tribunals within the same jurisdiction. It creates a legal obligation for judges to adhere to established rules or precedents when deciding cases, ensuring consistency and predictability in the law.
Bluebook Citation: Bluebook citation refers to a specific style of legal citation outlined in 'The Bluebook: A Uniform System of Citation,' which provides guidelines for referencing legal documents, cases, statutes, and secondary sources. This system is essential for ensuring clarity and consistency in legal writing, particularly when engaging with various forms of law and their interpretations.
Case Summaries: Case summaries are concise and structured overviews of court decisions that highlight the key elements of a case, including facts, legal issues, rulings, and reasoning. They serve as valuable tools in legal research and writing, particularly when analyzing case law and understanding how courts interpret statutes and regulations, making them essential for grasping the broader implications of secondary sources of law.
Citations check: A citations check is a crucial process in legal writing that involves verifying the accuracy and relevance of citations used in a legal document. This step ensures that all referenced materials, such as cases, statutes, and secondary sources, are properly cited and accessible, helping to uphold the integrity and credibility of legal arguments. Conducting a citations check is essential for maintaining professionalism and adhering to legal standards.
Corpus Juris Secundum (C.J.S.): Corpus Juris Secundum, commonly referred to as C.J.S., is a comprehensive legal encyclopedia that serves as a secondary source of law in the United States. It provides detailed explanations of legal principles, case law, and statutory law across various jurisdictions, making it an essential resource for legal research and writing. This encyclopedic collection is organized by subject matter, allowing users to efficiently locate relevant legal information.
Doctrine of Stare Decisis: The doctrine of stare decisis is a legal principle that requires courts to follow the precedents established in previous cases when making decisions in similar cases. This promotes consistency and predictability in the law, ensuring that similar facts lead to similar outcomes, which is vital for upholding the rule of law and maintaining public confidence in the legal system.
Harvard Law Review: The Harvard Law Review is a prestigious legal journal published by Harvard Law School, known for its influential scholarship in the field of law. It features articles, essays, and notes authored by legal scholars, practitioners, and students, contributing significantly to legal discourse and the development of law. The Review is often regarded as one of the leading law journals in the United States and serves as a vital secondary source of law, providing critical insights and commentary on important legal issues and developments.
Jurisprudence: Jurisprudence is the theory and philosophy of law, encompassing various interpretations and principles that govern legal systems. It not only explores the nature of laws but also examines their applications and the moral implications behind them. Understanding jurisprudence involves considering how different legal theories can influence the development of laws and their interpretation within society.
Law Reviews: Law reviews are scholarly journals that publish articles, essays, and comments on legal issues, often written by law professors, legal practitioners, and students. They serve as a platform for the discussion of new legal theories, critiques of existing law, and analysis of judicial decisions, thus playing an essential role in the development of legal scholarship and practice.
Legal Commentaries: Legal commentaries are scholarly writings that analyze and interpret laws, statutes, and judicial decisions, providing critical insights and perspectives on legal issues. These commentaries serve as valuable resources for understanding the implications of legal texts and offer context, critiques, and practical applications for legal practitioners, scholars, and students alike.
Legal Encyclopedias: Legal encyclopedias are comprehensive reference works that provide an overview of legal principles and topics, serving as valuable secondary sources of law. They summarize the law in various areas, helping researchers quickly grasp legal concepts and find citations to relevant primary sources. Legal encyclopedias typically include entries written by experts, often containing footnotes and citations that guide users to case law, statutes, and other authoritative resources.
Legal Precedent: Legal precedent refers to a principle or rule established in previous legal cases that is binding or persuasive for courts when deciding subsequent cases with similar facts or legal issues. This concept plays a crucial role in ensuring consistency and predictability in the law, as it requires courts to follow the rulings made by higher courts within the same jurisdiction.
Legal Research: Legal research is the process of identifying and retrieving information necessary to support legal decision-making, including finding relevant statutes, regulations, case law, and legal precedents. This practice is essential for understanding the law and applying it effectively, as it relies on both primary sources, which are authoritative legal texts, and secondary sources, which provide commentary and analysis on the law. Mastering legal research enables individuals to navigate the complexities of the legal system efficiently.
Persuasive Authority: Persuasive authority refers to legal sources that a court may consider but is not obligated to follow, as they do not have binding precedent in the jurisdiction. These sources can influence a court's decision-making process, especially when there is no applicable binding authority on a particular issue. Persuasive authority can include decisions from other jurisdictions, secondary sources, or legal commentary that helps shape legal arguments.
Restatement of the Law: Restatement of the Law refers to a series of publications that aim to distill and clarify the principles of common law in the United States, providing a coherent summary of existing legal standards. These works, produced by the American Law Institute, serve as important secondary sources for understanding and applying legal doctrines in various areas of law, such as contracts, torts, and property. They are widely respected and frequently cited by courts and practitioners for their authoritative treatment of legal issues.
Secondary Authority Analysis: Secondary authority analysis refers to the examination and evaluation of non-binding legal sources that provide commentary, explanation, or interpretation of the law. These sources do not have the same legal weight as primary authority, such as statutes or case law, but they play a crucial role in legal research and writing by helping to understand and contextualize legal issues.
Treatises: Treatises are comprehensive written works that systematically explore and analyze a particular area of law, often providing detailed commentary on legal principles, statutes, and case law. They serve as important secondary sources of law, offering insights and guidance for practitioners, scholars, and students seeking to understand complex legal issues. By synthesizing a wide range of legal materials, treatises help to clarify and interpret the law in a structured manner, making them valuable tools for legal research and study.