Secondary Authority:Types of Sources & When to Use Them

*Our focus is primarily on when and why to research various types of secondary authority.

When To Use Secondary AuthorityResearching an area of law with which you are unfamiliar.Looking for primary persuasive authority but not knowing how to narrow the jurisdictions that are likely to have useful information. Researching an undeveloped area of the law.Searching for primary sources initially yields either no authority or too much authority.

*Secondary sources can give you the necessary background to generate search terms. Many researchers begin their searches in secondary authority, saving time by building on the research that others have done. We address secondary authorities last, as a bridge to your Open Memo research. Consider when NOT to use secondary authority:As secondary authority is not binding on courts, you will rarely cite to it in a legal memorandum or brief. Never rely exclusively on a discussion of primary authority in a secondary source. Instead, always read the primary authority yourself.Think of secondary sources as a starting point for primary authority.

Types of Secondary Authority

Treatises Legal EncyclopediasLegal PeriodicalsAmerican Law ReportsRestatements

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This slide lists the five most commonly used secondary sources, which is our focus.

TreatisesTreatises provide:An in-depth discussion and some analysis of a single area of law Citations to primary authorityScholarly textInternal finding tools (TOC, Index, other tables)

*Treatises typically are organized by chapters and sections and, when published by West or one of its affiliated companies, include cross-references to other West research tools, including Key Numbers and Digest Topics.

Locating TreatisesIn Print: through the card or on-line catalogshelf-browsingby asking a reference librarian for a recommendationCUA Librarys First-Year Study Aids link on Library Homepage

*To locate a treatise in a catalog, use various topical terms, because treatises are not indexed as treatises but, rather, under the topic/subject that they cover.

Many treatises are available only in print form. A list of treatises by subject is available through the librarys First-Year Study Aids link.

Utility of TreatisesComprehensive and scholarly overview of subjectAnalytical as well as descriptive (good starting point for research)May be persuasive secondary authority, depending on credibility of author, quality of work

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Legal EncyclopediasAmerican Jurisprudence (Am. Jur.) and Corpus Juris Secundum (C.J.S.) are the two principal general legal encyclopedias.State encyclopedias provide an overview of the law in an individual state.

*When researching an area of state law, state encyclopedias (if available) are more helpful than general encyclopedias because the summaries of the law will be tailored to the court decisions in that state and the citations to primary authority will be from the controlling jurisdiction and will usually be more up-to-date.

State encyclopedias have names such as Encyclopedia, Jurisprudence, or Practice.

Encyclopedia:American Jurisprudence Second Series & Corpus Juris Secundum

*Multi-volume set organized alphabetically by topic. Am. Jur. 2d covers over 400 topics of law, with about 90 volumes. Analysis in Am. Jur. 2d covers all primary law, including state and federal, civil and criminal, and substantive and procedural.

Basic Am. Jur. 2d is carried over to related products, e.g., Am. Jur. Legal Forms; Am. Jur. Pleading & Practice Forms Annotated, and Am. Jur. Proof of Facts series. Note that some states have a comparable Proof of Cases series.C.J.S., with over 100 volumes, coverage parallels Am. Jur.

Utility of Legal EncyclopediasLegal encyclopedias are comparable to general subject encyclopedias you have used in the past.Legal encyclopedias are limited in scope to legal subjects.Because legal encyclopedias report on the general state of the law, you will usually use them to locate background information on your research topic.

*Legal encyclopedias contain textual descriptions of the law, and not just case annotations, thereby providing a helpful overview of the law.

Locating Material in Legal Encyclopedias(1) Use the subject index or topic list (overall Table of Contents).(2) Locate relevant subjects in the main subject volumes.(3) Update with pocket part.With some exceptions, this same three-step research process applies to all secondary sources.

*Each Am. Jur. 2d topic begins with an outline of the topic, followed by a more detailed sub-analysis. Under each section of the analysis, footnotes reference primary case law authority related to the topic, but these are not exhaustive. Index volumes are separate, soft-cover volumes published annually and shelved at the end of the set.

Always update your research through pocket parts and cumulative supplements.

Legal Periodicals

*A legal periodical is a secondary authority that provides commentary on a range of legal topics and is published periodically, such as quarterly, monthly, or weekly.

Utility of Legal PeriodicalsMost articles cover their subject in depthProvide valuable background information (e.g., historical or statistical)Critiques of present law or suggested reformsGood source for discussion of new legal topics

*The value of law review articles for researchers is in the prolific footnotes that deal with the authors research on the topic. Footnotes reference cases, statutes, and other authorities on the articles subject.

Some disadvantages of legal periodicals: lose currency quickly and some analysis may be idiosyncratic.

Just as it is more efficient to use State encyclopedias rather than national ones, it is helpful to begin your research in legal periodicals published within your clients jurisdiction.

Evaluating Legal PeriodicalsCoverageAccuracy (propositions adequately supported by cited authorities)Persuasiveness (convincing, logical arguments)Reputation of authorReputation of publisher

*With regard to currency, most legal periodicals can be Shepardized electronically in Lexis Advance or KeyCited in Westlaw or WestlawNext. Often you can locate later articles that add to or critique an earlier article.

American Law Reports & American Law Reports Federal

*Multi-volume, multi-series sets that contain annotations. Annotations collect summaries of cases from a variety of jurisdictions to provide an overview of the law on a topic.

A.L.R. Annotations are objective; they are written to lay out the state of the law and all the ways it is being interpreted.

A.L.R. Annotations include references to other sources of information on your topic.

Utility of A.L.R.Provides overview of area of law and citations to primary authorityProvides persuasive authority from other jurisdictions.Case descriptions organized by rule or outcomeFocus on issues of current controversy Provides references to other secondary sources

*A.L.R. combines the breadth of topic coverage found in encyclopedias with the depth of discussion in a treatise. It is not organized by subject matter, but rather articles are in chronological order. Cases often reference A.L.R. articles.Generally, A.L.R.: First section has scope of annotation Summary of the law and practical observations of how the law applies Further sections set forth in detail different rules applied by courts, showing opposite viewpointsTable of jurisdictions representedgreat source of information about state of the law on this issue all around the country, in both federal and state courts

RESTATEMENTSSummaries of existing common law in the following areas: Agency; Conflict of Laws; Contracts; Foreign Relations; Judgments; Law Governing Lawyers; Products Liability; Property; Restitution; Security & Suretyship & Guaranty; Torts; Trusts; & Unfair Competition Written by legal scholars & published by American Law Institute, www.ali.org

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Utility of RestatementsUnique purpose to unify the common law on a national basisWritten in the form of rules with explanationsWritten and revised through a deliberative process with multiple expert authorsSome sections may be adopted by courts, making them primary authority

*The Restatements are summaries of law written with the goal of distilling a legal subject into precise and succinct statements. Restatements can be useful because sometimes courts will specifically note that they have adopted the Restatement view on a particular legal question.

Format of RestatementsRestatement RuleRule followed by explanatory aids: comments and illustrationsComments clarify the scope and meaning of Restatement rule (may also offer insights as to rationale)May include Reporters notes (analogous to legislative or administrative history)

*Restatement Rule is often referred to as the black letter of the law. Shepardize/KeyCite to update.

Choosing Among Secondary SourcesGoals: comprehensive, correct, credible, cost-effective research resultsPrioritize leads with your research terms in title and subject descriptions.First pursue sources narrowly focused on your research topicIf you see more than one reference to a source, review that source first

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*Our focus is primarily on when and why to research various types of secondary authority.

*Secondary sources can give you the necessary background to generate search terms. Many researchers begin their searches in secondary authority, saving time by building on the research that others have done. We address secondary authorities last, as a bridge to your Open Memo research. Consider when NOT to use secondary authority:As secondary authority is not binding on courts, you will rarely cite to it in a legal memorandum or brief. Never rely exclusively on a discussion of primary authority in a secondary source. Instead, always read the primary authority yourself.Think of secondary sources as a starting point for primary authority.*

This slide lists the five most commonly used secondary sources, which is our focus.*Treatises typically are organized by chapters and sections and, when published by West or one of its affiliated companies, include cross-references to other West research tools, including Key Numbers and Digest Topics.

*To locate a treatise in a catalog, use various topical terms, because treatises are not indexed as treatises but, rather, under the topic/subject that they cover.

Many treatises are available only in print form. A list of treatises by subject is available through the librarys First-Year Study Aids link.

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*When researching an area of state law, state encyclopedias (if available) are more helpful than general encyclopedias because the summaries of the law will be tailored to the court decisions in that state and the citations to primary authority will be from the controlling jurisdiction and will usually be more up-to-date.

State encyclopedias have names such as Encyclopedia, Jurisprudence, or Practice.

*Multi-volume set organized alphabetically by topic. Am. Jur. 2d covers over 400 topics of law, with about 90 volumes. Analysis in Am. Jur. 2d covers all primary law, including state and federal, civil and criminal, and substantive and procedural.

Basic Am. Jur. 2d is carried over to related products, e.g., Am. Jur. Legal Forms; Am. Jur. Pleading & Practice Forms Annotated, and Am. Jur. Proof of Facts series. Note that some states have a comparable Proof of Cases series.C.J.S., with over 100 volumes, coverage parallels Am. Jur.*Legal encyclopedias contain textual descriptions of the law, and not just case annotations, thereby providing a helpful overview of the law.*Each Am. Jur. 2d topic begins with an outline of the topic, followed by a more detailed sub-analysis. Under each section of the analysis, footnotes reference primary case law authority related to the topic, but these are not exhaustive. Index volumes are separate, soft-cover volumes published annually and shelved at the end of the set.

Always update your research through pocket parts and cumulative supplements.

*A legal periodical is a secondary authority that provides commentary on a range of legal topics and is published periodically, such as quarterly, monthly, or weekly.

*The value of law review articles for researchers is in the prolific footnotes that deal with the authors research on the topic. Footnotes reference cases, statutes, and other authorities on the articles subject.

Some disadvantages of legal periodicals: lose currency quickly and some analysis may be idiosyncratic.

Just as it is more efficient to use State encyclopedias rather than national ones, it is helpful to begin your research in legal periodicals published within your clients jurisdiction. *With regard to currency, most legal periodicals can be Shepardized electronically in Lexis Advance or KeyCited in Westlaw or WestlawNext. Often you can locate later articles that add to or critique an earlier article.*Multi-volume, multi-series sets that contain annotations. Annotations collect summaries of cases from a variety of jurisdictions to provide an overview of the law on a topic.

A.L.R. Annotations are objective; they are written to lay out the state of the law and all the ways it is being interpreted.

A.L.R. Annotations include references to other sources of information on your topic. *A.L.R. combines the breadth of topic coverage found in encyclopedias with the depth of discussion in a treatise. It is not organized by subject matter, but rather articles are in chronological order. Cases often reference A.L.R. articles.Generally, A.L.R.: First section has scope of annotation Summary of the law and practical observations of how the law applies Further sections set forth in detail different rules applied by courts, showing opposite viewpointsTable of jurisdictions representedgreat source of information about state of the law on this issue all around the country, in both federal and state courts

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*The Restatements are summaries of law written with the goal of distilling a legal subject into precise and succinct statements. Restatements can be useful because sometimes courts will specifically note that they have adopted the Restatement view on a particular legal question. *Restatement Rule is often referred to as the black letter of the law. Shepardize/KeyCite to update.

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