Secondary sources are essential tools in legal research, offering insights and analysis of the law. They range from scholarly treatises to practical guides, providing background information and helping identify relevant primary sources.
Using secondary sources effectively can streamline research, especially when dealing with unfamiliar or complex legal issues. However, it's crucial to remember their limitations - they're not binding authority and must be critically evaluated for currency, accuracy, and potential bias.
Types of Secondary Sources
Scholarly Works Analyzing and Interpreting the Law
- Treatises are comprehensive, scholarly works on a specific area of law, often cited by courts as persuasive authority (Nimmer on Copyright, Prosser and Keeton on Torts)
- Law review articles are scholarly pieces written by law professors, judges, and practitioners that deeply analyze specific legal issues, often proposing new interpretations or solutions
- Published in law school journals
- The American Law Institute publishes Restatements of the Law, highly influential treatises that aim to "restate" common law principles in various subject areas based on an analysis of court decisions
- While not binding, they are frequently cited by courts
General Overviews and Practical Guidance
- Legal encyclopedias provide general overviews of legal topics with references to primary sources (American Jurisprudence 2d, Corpus Juris Secundum)
- Other secondary sources include:
- Legal dictionaries
- Practice guides
- Continuing legal education materials
- Study aids
Importance of Secondary Sources
Providing Background and Analysis
- Secondary sources play a crucial role in the legal research process by providing background information, an overview of a legal topic, and an analysis of primary sources
- Researchers often begin with secondary sources to gain a foundational understanding of an unfamiliar area of law before delving into primary sources
- Authoritative secondary sources can provide insight into how courts have interpreted primary sources and how the law has developed over time
Identifying Relevant Primary Sources
- Secondary sources can help researchers identify relevant primary sources, such as key cases and statutes, through citations and references
- Well-respected secondary sources, like treatises and Restatements, are often cited by attorneys in legal briefs and by courts in opinions as persuasive authority, though they are not binding
Offering Practical Guidance
- Secondary sources can provide practical guidance, such as strategies for handling a particular legal issue or sample forms
Using Secondary Sources
Initial Research Stages
- Researchers should typically begin with secondary sources when faced with an unfamiliar legal issue to gain a foundational understanding before locating primary sources
- Secondary sources are useful when the researcher needs an overview of a broad area of law or a survey of how different jurisdictions approach a particular legal issue
Addressing Novel or Complex Issues
- If the research question involves a novel or complex issue, secondary sources can provide analysis and insight into how the issue may be resolved based on existing law
Progressing the Research Process
- As the research process progresses, researchers may consult secondary sources to locate additional primary sources, understand how primary sources have been interpreted, or find support for a particular legal argument
- Researchers should use secondary sources in conjunction with primary sources, not as a substitute for them
Limitations of Secondary Sources
Not Binding Authority
- While secondary sources are valuable research tools, they have limitations that researchers must recognize
- Secondary sources are not the law itself, but rather interpretations and analyses of the law
- They are not binding authority on courts
Evaluating Persuasiveness
- The persuasiveness of a secondary source depends on factors such as the expertise of the author, the depth of analysis, and the date of publication
- Researchers must evaluate the authority of each source
- Secondary sources may be biased or advocate for a particular interpretation of the law, so researchers should approach them critically and consider multiple perspectives
Verifying Currency and Accuracy
- Information in secondary sources may be outdated, particularly in rapidly evolving areas of law
- Researchers must verify that the law described in a secondary source is still current
- Researchers should always verify the information found in secondary sources by consulting the cited primary sources directly
- While secondary sources can provide valuable analysis and insight, researchers must ultimately base their legal arguments on relevant primary authority