Secondary Sources 101

What are secondary sources?

Primary law sources: are statements of law by governmental institutions, such

as the courts or legislatures consists of case law, statutes, constitutions,

administrative decisions, rules of court, and regulations may be binding (mandatory) or persuasive authority

Secondary law sources: are statements about the law by legal experts explain, interpret, develop, locate, or update primary law are never binding (mandatory) authority may be persuasive authority

They often provide an objective overview of an area of the law; therefore they are a good place to start research in an unfamiliar area of the law.

They may raise issues not previously considered.

They cite or link to cases, statutes, and other secondary sources that are relevant to the current issue.

Some secondary sources are sufficiently respected that they can be used as persuasive authority when primary source authority cannot be found.

Why do we use secondary sources?

The most useful sources are online and in print

Treatises, Hornbooks and Nutshells American Law Reports (ALR) American Jurisprudence 2d (Am Jur) Law reviews Bar journals Restatements of the Law Uniform Model Laws Black’s Law Dictionary®

Treatises, Hornbooks, Nutshells

Treatises

Ex/ Greenleaf on Evidence

extensive analysis of an area of law

Provides many cites to primary law

To find them in MORRIS, search by author, title, or try a keyword search (ex/ evidence and treatise)

See also the Georgetown Treatise Finder

Hornbooks

are generally prepared for student use

are straightforward, clear, non-analytical presentations of the law

clarify and organize the law in a given area

are very useful as case finders references to cases limited to

landmark cases

Casebooks

present seminal cases and subsequent and sometimes seemingly conflicting cases

contain little or no analysis

encourage students to analyze case law and draw their own conclusions

Nutshells

Nutshells are paperback books designed to give a quick overview of an area of the law.

There are over 118 titles in the Nutshell Series.

References to primary law are limited.

Nutshells are a good place to start research if you know nothing about an area of the law.

Practice Guides

Designed for practitioners

Usually confined to one jurisdiction or area of the law

Practice guides include procedural manuals, judicial desk books, form books, and much more

American Law Reports

ALR editors select and report cases that represent specific legal issues that are emerging, unsettled or changing and that are of interest to to many lawyers.

A legal scholar writes an annotation, often called an ALR “article”, using the case as the basis of the annotation.

The article explores the law of the jurisdictions that have dealt with this issue. The author uses this law to provide an objective analysis of the current state of this area of the law

Legal Encyclopedias

Legal encyclopedias are arranged alphabetically by

topic divide topics into sections have a fairly short non-

analytical narrative in each section

give a general, rather than in-depth, view of the law

cross-reference relevant primary law

Legal encyclopedias are a good place to start research in an

unfamiliar area of the law to get a quick, general, answer

to a legal question.

American Jurisprudence 2d

General treatment of federal and state issues

Each title contains pocket parts and supplements and subject indexes

Lots of citations to primary law (cases and statutes) and secondary sources (treatises, law review articles)

Easy way to get an overview of an area of law from a multi-jurisdictional perspective

Organized alphabetically by broad topic with a detailed subject index.

See also:

American Jurisprudence Proof of Facts A multivolume seta practical guide for lawyers contains

checklists and planning advicepreparation for trial materialsexamination of witnesses materials

American Jurisprudence Trials is a treatise on litigation practice.

American Jurisprudence Legal Forms and American Jurisprudence Pleading and Practice Forms (Revised) contain the forms needed in the practice of law.

Corpus Juris Secundum (CJS)

• C.J.S. contains 400 broad topics, each divided into subtopics, which are sub-divided into sections.

• Each section contains a brief, “blackletter” statement of the law, followed by a short section of text.

• Footnotes reference federal and state cases.

• C.J.S. cross references the titles and sections to West topics and key numbers (case law) and other secondary sources.

There is an annual multivolume General Index.

Each volume has its own index.

There are annual cumulative pocket supplements.

Replacement volumes are issued periodically.

Replacement volumes contain a Table of Corresponding Sections that cross-references replacement volumes with older volumes.

Definitions of words and phrases are included with appropriate sections and in the volume indexes.

Corpus Juris Secundum is in the CJS database on Westlaw.

4-step Process for searching a Legal Encyclopedia

1. Search for your keywords in the index volumes

2. Find the indexed topic and section

3. Read the encyclopedia entry

4. Update your research with pocket parts and/or supplements.

Law Review Articles

Can be general or focus on a specific area of the law

Often solicit lead articles from legal experts, generally law professors, which usually address narrow or cutting-edge legal issues

Are often heavily footnoted Notes and Comments are written by student

members of the law review Notes usually are critical analysis of

recent court cases or new statutes. Comments are usually critiques

on issues of current interest.

Bar Association Periodicals and Newspapers

National, state, and local associations publish journals. For instance, the ABA Journal is a leading bar journal; the best-known weekly newspapers are the National Law Journal and Legal Times.

Bar association publications tend to emphasize more practical aspects of the law and do not crusade to change or criticize the law.

These publications usually comment on recent legislation and court cases.

Are available in Lexis, Westlaw, bar association websites and in print.

Finding Law Reviews, Bar Periodicals, etc.

Indexes: Index to Legal Periodicals

Wilson Web Westlaw and Lexis

Current Index to Legal Periodicals Legal Trac

Full text recent: Lexis and Westlaw

Full text archive: HeinOnline

Restatements

Restatements of the Law are written by prominent legal scholars

Restatements must be formally adopted by the members of the American Law Institute.

Attempt to clarify the ever-increasing amount and complexity of case law by clear, concise restatements.

More than any other secondary source, Restatements are often accepted by the courts as persuasive authority.

Using Restatements

Restatements are divided into chapters, then into narrower titles, and then into numbered sections.

Each section begins with a “blackletter” statement of the law.

The blackletter statement covers a fairly broad issue.

Sub-issues are often discussed in the author’s Comments and Illustrations that follow each statement. These comments and illustrations are often cited by the courts.

Appendix volumes contain summaries of cases that have

cited each section of the Restatement.

Indexes Some have subject index for each volume. Recent Restatements have an index in the

last volume or in a separate volume.

Reporter’s Notes are at the end of each section or in the Appendix

Recent volumes have cross-references to the West Key Number System® and ALR annotations.

Recent Restatements have an index in the last volume or in a separate volume.

Uniform Laws

The National Conference of Commissioners on Uniform State Laws drafts Uniform Laws and Model Acts.

The goal is to promote uniformity in state law on subjects where uniformity is desirable and practical.

The National Conference designates as a “Uniform Law” any act that has a reasonable chance of enactment in a substantial number of states: The National Conference has approved more than 200 acts and more than 100 have

been adopted by at least one state. Uniform Commercial Code has been enacted in every state.

Approved laws can be found in separate pamphlets the annual Handbook of the National Conference Uniform Laws Annotated, Master Edition, with annual supplements ULA database on Westlaw, also on LexisNexis

Model Acts

An act that does not have a reasonable chance of adoption by a substantial number of states is designated a “Model Act.”

The goal is to have some of the sections, but not all, adopted or modified by some of the states.

Both the National Commission and the American Law Institute draft Model Acts.

Model Business Corporation Act, Model Penal Code Model Acts can be located in

Handbook of the National Conference Directory of Uniform Acts and Codes Lexis and Westlaw

Dictionaries

Black’s law dictionary is the most widely used but there are a number of general and specialized law dictionaries that identify words in the legal context of usage.

includes citations to court cases and other sources of a legal definition

includes a guide to pronunciation of Latin words

includes a table of abbreviations

Words and Phrases

Multivolume series

Gives only judicial definitions of words and phrases, therefore is not a complete dictionary

In Westlaw, the Words and Phrases definitions can be retrieved in any case law database using a wp field search, such as:

wp(“social host”)