This document provides an introduction to primary and secondary legal sources. It defines primary sources as statutes, cases, regulations, and constitutions that contain direct statements of the law. Secondary sources are considered commentary and include treatises, encyclopedias, restatements, and law reviews that explain and interpret the law. The document recommends starting legal research with secondary sources to familiarize yourself with an area of law before locating relevant primary sources. It then provides an overview of different types of secondary sources and how they differ in terms of specificity, depth of coverage, and usefulness at different stages of the research process.
This document provides an introduction to primary and secondary legal sources. It defines primary sources as statutes, cases, regulations, and constitutions that contain direct statements of the law. Secondary sources are considered commentary and include treatises, encyclopedias, restatements, and law reviews that explain and interpret the law. The document recommends starting legal research with secondary sources to familiarize yourself with an area of law before locating relevant primary sources. It then provides an overview of different types of secondary sources and how they differ in terms of specificity, depth of coverage, and usefulness at different stages of the research process.
This document provides an introduction to primary and secondary legal sources. It defines primary sources as statutes, cases, regulations, and constitutions that contain direct statements of the law. Secondary sources are considered commentary and include treatises, encyclopedias, restatements, and law reviews that explain and interpret the law. The document recommends starting legal research with secondary sources to familiarize yourself with an area of law before locating relevant primary sources. It then provides an overview of different types of secondary sources and how they differ in terms of specificity, depth of coverage, and usefulness at different stages of the research process.
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
2 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 3 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 youre 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 4 5 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! 6 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 7 Finding Secondary Sources 8 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? 9 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. 10 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
11 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. 12 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).
13 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 14