Secondary sources complete_show2

SECONDARY SOURCESWest’s Instructional Aid Series

• Introduction

• ALR®

• Legal Encyclopedias (Am Jur®, C.J.S.®)

• Restatements of the Law

• Legal Periodicals

• Texts

• Law Dictionaries

• Uniform Laws

• Digest Paragraphs, Headnotes, and Statutory Annotations

CONTENTS

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• 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

PRIMARY & SECONDARY LAW

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• Binding or mandatory law:– Applies to the current case and must be followed

• Persuasive law:– Can be analogized to the current case and may be followed.

Persuasive law includes primary law that is• law from another jurisdiction• dicta • a similar but different fact pattern

– Secondary law

BINDING & PERSUASIVE AUTHORITY

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• 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 USE SECONDARY SOURCES IF THEY ARE NOT BINDING AUTHORITY?

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• American Law Reports (ALR)

• American Jurisprudence 2d (AMJUR)


• Law reviews (depth of coverage on Westlaw varies)

• Bar journals (depth of coverage on Westlaw varies)

• Black’s Law Dictionary®

• Uniform Model Laws

• Many treatises

USEFUL SECONDARY SOURCES AVAILABLE ON WESTLAW AND IN PRINT

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Mr. Smith decides to throw a cocktail party for potential contributors to his favorite charity. He lavishly supplies alcoholic beverage while soliciting donations. The party is a great success. Much money is raised, and the guests show all the signs of completely enjoying themselves. Several of the guests become unruly.

Mr. Smith escorts one such guest, Mr. Jones, to his car, helps him into the car, and warns him to “be careful.” Mr. Jones drives off but within a few blocks of the party crashes into another car, causing severe injuries to both himself and the occupants of the other car.

A SAMPLE ISSUE

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Mr. Smith’s lawyer knows that the state’s Dram Shop Law imposes liability on commercial sellers of alcohol who illegally sell alcohol to a customer who later causes injuries due to intoxication. In some states this liability extends to social hosts who accept something in return for drinks; in others it does not.

• If you are unfamiliar with this area of the law in your state, secondary source materials are an excellent starting point for your research.

• Secondary sources:– provide an objective overview of the topic– suggest issues you might not have thought of– reference relevant cases and statutes

A SAMPLE ISSUE

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CONTENTS• Introduction

• ALR®




• Texts


• Uniform Laws


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

AMERICAN LAW REPORTS (ALR)

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• ALR 1st series: volumes 1-175 (1919-1948)

• ALR 2d series: volumes 1-100 (1949-1965)

• ALR 3d series: volumes 1-100 (1965-1980)

• ALR 4th series: volumes 1-90 (1980-1992)

• ALR 5th series: (1992-2004)

• ALR 6th series: (2005-present)

• ALRFed 1st series: (1969-2004)

• ALRFed 2d series: (2005 – present)

AMERICAN LAW REPORTS (ALR) IN PRINT INCLUDES SEVERAL SERIES

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• The print articles include1

– Total Client-Service Library® and other research sources references• legal encyclopedias and texts• practice aids• law review articles• electronic search queries• West Key Numbers• ALR Digest

– Article outline– Index to topics included– Jurisdictional table of cited cases and statutes– Text of the annotation 1 Features vary somewhat by series.


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Total Client-Service Library and other research sources

Article Outline and Index

Table of JurisdictionsRepresented

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AMERICAN LAW REPORTS (ALR) – FEATURES IN PRINT

• Finding Aids in each volume

• Each recent volume includes– Contents (annotations in the

volume)– Subjects Annotated in the volume– Table of Cases reported in the

volume– Some 4th Series and all 5th Series

volumes include instructions explaining

•how to find an article •how to use an article•a graphic showing how to update an annotation

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• Multivolume ALR Index– lists articles by subject matter

– includes all ALR volumes, except those in the First Series

– is updated with annual pocket parts

• ALR Federal Quick Index

• ALR Quick Index for ALR 3d, 4th, and 5th series

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AMERICAN LAW REPORTS (ALR) – USING THE ALR INDEX

• ALR Digest is divided into more than 400 topics arranged alphabetically.

• Under each topic are headnotes from cases reported in the entire ALR family along with a list of the articles that deal with the particular subject in question.

• ALR has a digest set.

• ALR2d has a digest set.

• ALR3d, ALR4th, ALR5th, and ALR Fed are combined in one digest set.

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AMERICAN LAW REPORTS (ALR) – USING THE ALR DIGEST

• Check the annual supplement in the back of the main volume in the ALR 3d, 4th, and 5th series.

• The supplement provides citations to more recent cases relevant to the article topic.

• Digests of cases are keyed to the correct section of each article.

• ALR2d is kept current by a multivolume ALR2d Later Case Service.

• ALR (First Series) is kept current by the ALR Blue Book of Supplemental Decisions. Each of the eight volumes covers a specific time period.

• Latest Case Service Hotline updates each supplement. The phone number (1-800-225-7488) is printed on the cover of each supplement.

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AMERICAN LAW REPORTS (ALR) – UPDATING ALR ARTICLES

• The analysis of the law as presented in an early article may be changed by later case law.

• Articles in the first and second series were often supplemented by a later article and the original and the supplementing articles had to be read together.

• Annotation History Table in the last volume of the ALR Index gives the history of articles in all the ALR series.

• KeyCite History on Westlaw also shows whether an ALR articles has been superseded or supplemented.

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SUPERSEDING & SUPPLEMENTING ALR ANNOTATIONS

62 ALR4th 16 hassuperseded both75 ALR2d 833 and97 ALR3d 528.

A red KeyCite flag is displayed on the superseded ALR annotations.

Superseded in Part by

Superseded by

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SUPERSEDING ALR ANNOTATIONS

• In the print ALR volumes, the lead case precedes the article or, in ALR5th, all cases are printed at the end of the volume.

• You can use the Find service on Westlaw to retrieve either the ALR lead case or the ALR article.– Find 62 alr4th 1 - retrieves the case– Find 62 alr4th 16 - retrieves the article

• The ALR case citation is a parallel citation to the state, regional, or federal reporter citation.

• On Westlaw, the lead case is not in the ALR database. It can be found in the appropriate state, regional, or federal case database(s).

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• In the ALR database on Westlaw, there are often very current articles that discuss recent issues of interest that have not yet appeared in the print version.

• The Total Client-Service Library and other references are accessed by clicking Document Outline on the Links for tab in the left frame of the retrieved ALR article. (See next slide.)

• The Article (Annotation) Outline is accessed by clicking Document Outline on the Links for tab in the left frame. (See next slide.)

• You can also link from the Document Outline to the article’s Index and Table of Jurisdictions.

• Database: ALR– Query: ti(“social host” /s liab!)

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ALR ON WESTLAW

ALR Features on Westlaw

• The Table of Contents in each ALR article contains links to finding aids including an Index and a Table of Cases.

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• KeyCite Citing References for case law, statutes, federal regulations, and agency decisions will include links to citing ALR articles.

• ALR articles have KeyCite History and KeyCite Citing References links on the Links for tab. KeyCite History for an ALR annotation will show if an ALR article has been superseded by a more recent article.

• Use Westlaw as a citator. Enter a search, such as– dram-shop “social host” /s liab! /p a.l.r.!

to retrieve references to ALR articles in databases that contain cases, texts, or legal periodicals.

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USING WESTLAW AS A CITATOR


• ALR®




• Texts


• Uniform Laws


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• 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

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ENCYCLOPEDIAS

• Provides a broad overview of a topic

• Identifies specialized vocabulary

• Provides citations to primary materials and ALR annotations

• Cross-references other secondary material

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AMERICAN JURISPRUDENCE 2D

• The print version of Am Jur 2d consists of– 120 volumes1

– more than 430 titles

• Each volume contains a– Table of Contents

– Table of Parallel References

– Table of Statutes and Rules Cited

– Index for articles in the volume

• Topics are preceded by a detailed scope note, general cross-references, and an outline of the topic.

1 The last volume is numbered 83 because more than one volume may have the same number, for example the volumes 45, 45A, 45B.

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• The annual four-volume General Index contains definitions of words and phrases.

• On Westlaw, the index can be retrieved in the AMJUR databases with a search, such as:– ci(index)

– ci(index) & dram-shop

• There is a separate volume titled Table of Statutes, Regulations, and Rules Cited.

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• There are annual pocket supplements.

• The Am Jur Index is issued each year.

• The New Topic Service, in looseleaf format, introduces new material before new volumes are issued:– new topics of the law

– substantial changes in the law

• Bound volumes are periodically revised.

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UPDATING AMJUR 2D

• American Jurisprudence Proof of Facts – A multivolume set– a practical guide for lawyers – contains

• checklists and planning advice• preparation for trial materials• examination 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.

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OTHER AMJUR PUBLICATIONS

• AMJUR – Am Jur 2d

• AMJUR-LF – American Jurisprudence Legal Forms

• AMJUR-PP – American Jurisprudence Pleading and Practice Forms Annotated

• AMJUR-POF – American Jurisprudence Proof of Facts

• AMJUR-TRIALS – American Jurisprudence Trials

• AMJUR-POFTR – American Jurisprudence Proof of Facts and Trials Combination

• AMJUR-ALL – includes all American Jurisprudence databases

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AMJUR DATABASES ON WESTLAW

http://web2.westlaw.com/search/default.wl?DB=AMJUR%2DLF&RS=WLW2.70&VR=2.0&SV=Split&FN=_top&MT=Westlaw&RecreatePath=%2Fdirectory%2Fdefault%2Ewl

• Database: AMJUR-ALL

• Query: ti(“social host”/s liab!)

• This Am Jur Proof of Fact document was retrieved from the AMJUR-ALL database. Along with the text and references to cases and other legal documents, it contains sample interrogatories, checklists and other practical legal materials.

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A SAMPLE AMJUR SEARCH ON WESTLAW

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

• There are 150 volumes.1

1 The last volume is numbered 101 because more than one volume may have the same number, such as 48A and 48B.

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CORPUS JURIS SECUNDUM (CJS)

• 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 and other secondary sources.

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• 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.

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• Portion of a CJS section under Civil Liability for Injuries Resulting from Sale or Furnishing of Liquorin the CJS database on westlaw.com

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• ALR®




• Texts


• Uniform Laws


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• Restatements of the Law are written by prominent legal scholars.

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

• Restatements are the attempt of the American Law Institute 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.

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RESTATEMENTS OF THE LAW

• 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.

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• Agency (Second)

• Apportionment of Liability (Third)

• Conflict of Law (Second)

• Contracts (Second)

• Foreign Relations (Third)

• Judgments (Second)

• Law Governing Lawyers (Third)

• Products Liability (Third)

• Property (Third)

• Prudent Investor Rule (Third)

• Restitution (First)

• Security (First)

• Suretyship and Guaranty (Third)

• Torts (Second)

• Trusts (Second)

• Unfair Competition (Third)

• Wills and Donative Transfers (Third)

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CURRENT RESTATEMENTS OF THE LAW

• Features of the Restatements include1

– Appendix volumes• Instead of citing relevant cases, appendix volumes contain

summaries of cases that have cited each section of the Restatement.

– Indexes• Restatement, First Series, has a one-volume index to all

Restatements.• Restatements, Second and Third Series, do not have a

comprehensive index.– Some have subject index for each volume.– Recent Restatements have an index in the last volume or in a

separate volume.

1 Features vary by series and by volume.

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• Features (continued) – Reporter’s Notes are at the end of each section or in the

Appendix volumes of the agency, torts, and trust restatements.

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

• Updating Restatements– Drafts of new series are published in soft-cover format

– Cumulative annual supplements

– Interim case citation pamphlet

– Pocket parts

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– REST – all Restatements of the Law– REST-AGEN – Agency – REST-CONFL – Conflict of Laws – REST-CONTR – Contract Restatement– REST-FOREL – The Foreign Relations Law of the United

States– REST-JUDG – Judgments– REST-LGOVL – Law Governing Lawyers– PL-REST – Product Liability– REST-PROP – Property– REST-RESTI – Restitution– REST-SEC – Security and Suretyship and Guaranty– REST-TORT – Torts – REST-TRUST–Trusts – REST-UNCOM – Unfair Competition

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RESTATEMENTS DATABASES ON WESTLAW

• Online documents contain the text, comments, and illustrations of the Restatement, Case Citations to Restatements, Reporter’s Notes and Cross References.

• A Table of Contents link on the Links for tab opens the Table of Contents for the Restatement at the Restatement section being displayed.

• Drafts of future series are included in the databases.• Database: REST-TORT Search: dram-shop /p “social host” /s liab!

TOC

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• ALR®




• Texts


• Uniform Laws


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• Legal periodicals are published by many sources. There are:– Law School Reviews and Journals

– Bar Association Journals

– Legal Newspapers

– Topical and Special Interest Periodicals

– Newsletters

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LEGAL PERIODICALS

• are published by student-editors at law schools

• can be general or focus on a specific area of the law

• number of issues published per year varies by publication

• often solicit lead articles from legal experts, generally law professors, which usually address narrow legal issues

• are often heavily footnoted

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LAW REVIEWS AND JOURNALS

• 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.

• Book reviews are included in some law review and journal publications.

• All law reviews and journals are included in the JLR (Journals and Law Reviews) database on Westlaw. Each publication also has a separate database.

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LAW REVIEWS AND JOURNALS

• National, state, and local associations publish journals.• ABA Journal is a leading bar journal.• 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.

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BAR ASSOCIATION PERIODICALS

• These periodicals can be local, state or national in scope.

• The best-known weekly newspapers are the National Law Journal and Legal Times.

• American Lawyer is published monthly.

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LEGAL NEWSPAPERS

• Newsletters– are published mainly by commercial organizations and public

interest groups– usually focus on a narrow area of the law

• brief reviews of current cases and legislative and agency actions

– tend to be highly practical and technical– are valued because of their currency– are often the only publications that discusses a new and

narrow topic

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Database: LEGNEWSLSearch: “social host” /s liab!

• Westlaw databases include– LEGALNP –Legal Newspapers– LEGNEWSL – Legal Newsletters Multi-base– JLR – law school law reviews and journals– TP-ALL – law reviews and journals, bar journals, other

periodicals, texts, and treatises– Each periodical also has a separate database that can be

individually searched.– Database: TP-ALL

Query: ti(“social host” /s liab!)

retrieves 86 articles, most with helpful text and cross- references.

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ACCESS TO ONLINE PERIODICALS

• Originated in 1908

• Indexes approximately 600 English-language periodicals

• Access– Author/Subject Index– Table of Cases– Table of Statutes– Book Review Index

• ILP database on Westlaw (cannot be accessed by all law schools) – can be searched using Terms & Connectors, Natural

Language, or Fields.

Database: ILPQuery: ti(“social host” /s liab!)

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INDEX TO LEGAL PERIODICALS (ILP)

• Coverage begins in 1980

• Indexes approximately 850 worldwide legal periodicals, including practice-oriented periodicals

• Titles are indexed in English

• Issued monthly, with quarterly and annual cumulative issues

• Access– Subject/Proper Name Index

– Author/Title Index

– Table of Cases

– Table of Statutes

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CURRENT LAW INDEX (CLI)

• LRI is the online counterpart of CLI.– Updated daily

– Contains law related newspapers and articles selected from non-legal periodicals that are law related

• LRI database on Westlaw (cannot be accessed at all law schools)– Can be searched using Terms & Connectors, Natural

Language, and Fields.

• CILP database contains the eight most recent weeks of the Current Index to Legal Periodicals.

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LEGAL RESEARCH INDEX (LRI) & CURRENT INDEX TO LEGAL PERIODICALS (CILP)

• KeyCite is Westlaw’s citation research service.

• KeyCite Citing References will list the periodical articles that have cited a case, statute, federal regulation, or federal administrative decision.

• You can jump directly to these periodicals from KeyCite.

A portion of the Citing References for a Supreme Court case, showing

references to citing periodicals.

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USING KEYCITE TO LOCATE PERIODICALS


• ALR®




• Texts


• Uniform Laws


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• Treatises are:– written by legal scholars

– printed in book form

– good resources for discussions of cases and statutes relating to a particular area of the law

– can be critical, analytical, explanatory, or practical in nature

• Wright and Miller, Federal Practice and Procedure; Dobbs, The Law of Torts

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TREATISES

• Treatises generally contain– Table of Contents– Table of Cases– Text– Index– Supplemental materials in the form of pocket

parts or looseleaf service

• Sources for locating treatises include– Library catalogs

– Catalog of Current Law Titles by Ward and Associates

– Index to Legal Periodicals, which added books to its coverage in 1994

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TREATISES

• 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

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STUDENT TEXTS: HORNBOOKS

• 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

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STUDENT TEXTS: CASEBOOKS

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

• There are 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.

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STUDENT TEXTS: NUTSHELLS

• 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

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PRACTICE GUIDES


• ALR®




• Texts


• Uniform Laws


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• is the most widely used of a number of general and specialized law dictionaries

• consists of one volume

• identifies words in the context of legal 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

• has the database identifier BLACKS in Westlaw

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BLACK’S LAW DICTIONARY

• Multivolume series

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

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

wp(“social host”)

• Words and Phrases is also a separate database

WORDS-PHRASES

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WORDS AND PHRASES


• ALR®




• Texts


• Uniform Laws


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• 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.

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UNIFORM LAWS

• 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

• Contains uniform laws and model acts• Search: ci(“uniform commercial code”) • Find command: ula ucc 2-201

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UNIFORM LAWS

• 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– ULA database on Westlaw

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MODEL ACTS


• ALR®




• Texts


• Uniform Laws


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• Cases as reproduced in the National Reporter System® are a combination of primary and secondary authority.

• The opinion of the court is primary law.• The editorial enhancements, such as the synopsis and

the headnotes, are secondary law, that are– summaries of the opinion– written by West attorney-editors– written in universally recognized legal terminology in place of

outdated, slang, or regional words or proper names• Both headnotes and key numbers are in the digest (di)

field in Westlaw case law databases.• Database: any case law database Search: di(“social host” /p liab!)

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HEADNOTES

• A headnote is assigned to a West Key Number reflecting a specific point of law.

• Digest paragraphs are headnotes from cases arranged alphabetically by topic and then numerically by Key Number.

• Digests ease the retrieval of cases in any jurisdiction that have addressed the same point of law.

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DIGESTS

• Annotations (Notes of Decisions) are summaries of case law that has interpreted, explained, or analyzed the language of a statute.

• They follow the text and research aids in statutory materials.

• West statutory materials use the headnotes from relevant cases to annotate a statute as published by West.

• The annotations are secondary resources.

Do not cite the language of headnotes, digest paragraphs, or annotations as primary law.

They are to be used only as a way to find relevant cases.

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STATUTORY ANNOTATIONS

The language of the annotationto Minnesota Statute 340A.801that refers to the Koehnen case.

The language of the Digest Paragraph, the Case Headnote and the Statutory Annotation is identical.

The language of headnotenumber 2 of the Koehnen case. It references Minnesota statute 340A.801

The language in the digestparagraph that refers to the Koehnen case.

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• Secondary sources can help you start your research in an unfamiliar area of the law– Provide an overview of the law– supply correct legal terminology– raise related and relevant issues– reference relevant cases, statutes, and other

authoritative sources– reference finding aids, such as key numbers

• Before drawing final conclusions, re-check secondary sources to be certain you haven’t missed – a relevant primary source of law – a relevant legal argument

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CONCLUSION

• If you have any questions regarding secondary sources on Westlaw, please contact the West Reference Attorneys.

• Reference Attorneys are available 24/7 and can be reached by calling

1-800-850-WEST(9378)

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CONCLUSION

Secondary sources complete_show2

Documents

Transcript of Secondary sources complete_show2