Primary and Secondary Sources Module


Content

This module discusses the differences between Primary and Secondary Sources. These materials include:

I. Primary Sources

Primary authority consists of the law itself, created by one branch of the government and expressed in constitutions, statutes, court decisions, administrative regulations and administrative decisions.

Federal Entities
Type of Primary Authority   When and Where Binding   When and Where Persuasive
U.S. Constitution   Always binding on all federal and state courts   N/A
U.S. Supreme Court decision interpreting and applying federal law   Always binding on all federal and state courts   N/A
Federal Statute*   Always binding on all federal and state courts   N/A
Federal administrative regulation**   Always binding on all federal and state courts   N/A
U.S. Court of Appeals decision interpreting and applying federal law   Always binding on all federal within the jurisdictional boundaries of the Court of Appeals issuing the decision   May be regarded as persuasive by federal and state courts that do not need to treat the decision as binding

State Entities
Type of Primary Authority   When and Where Binding   When and Where Persuasive
State Constitution***   Always binding on all state courts within the given state   N/A
Decision of a state's highest court interpreting and applying that state's law ***   Always binding on all lower courts within the given state   May be regarded as persuasive by federal and state courts that do not need to treat the decision as binding
Decision of a state's intermediate appellate court interpreting and applying that state's law***   Always binding on all lower courts within the jurisdictional boundaries of the intermediate appellate court issuing the decision; in some states, may also be binding on lower state courts outside those jurisdictional boundaries
   May be regarded as persuasive by federal and state courts that do not need to treat the decision as binding
State statute †   Always binding on all state courts within the given state   N/A
State administrative regulation ‡   Always binding on all state courts within the given state   N/A

*   Assuming there is no conflict with the U.S. Constitution
**   Assuming there is no conflict with the U.S. Constitution or a federal statute
***   Assuming there is no conflict with the U.S. Constitution, a federal statute, or federal administrative law
†   Assuming there is no conflict with the U.S. Constitution, a federal statute, federal administrative law, or that state's constitution
‡   Assuming there is no conflict with the U.S. Constitution, a federal statute, federal administrative law, that state's constitution, or any of that state's statutes


II. Secondary Sources

A. Overview

Secondary authorities or secondary sources are essentially writings or commentaries about the law. They are extremely important to the development of the law and to the understanding of the law. Secondary authority consists of interpretation, analysis, or finding tools for primary sources. They are anything other than primary authority that a court might use as a basis for its decision, or which a researcher may use to understand or find primary authority.

Secondary authority does not have the "force and effect" of the law; consequently, when available primary authority should always be used. It is typically used as a starting point for research, when primary authority is unclear, unavailable, or unfavorable. Secondary sources furnish a basis for an argument as to what the law should be, but is not necessarily a statement of what the law is.
Secondary authority is never precedent and is generally not persuasive. Treatises by leading scholars in a given area of law, however, can be considered persuasive.

Restatements of the Law and American Law Reports are unique to legal research. There are, however, many secondary sources in the law, such as periodicals, dictionaries and encyclopedias, share qualities of research materials in other disciplines. These materials typically are arranged like the materials from the other disciplines and are, therefore, less intimidating to use than other legal sources.

Source Descriptions the following are the main sources of secondary material; a brief description of each is provided.

B. Law Reviews

Law Reviews are published by law schools and provide background and insight into legal issues, as well as citations to case law, statutory law and other primary sources. They are general, covering various topics, such as the Harvard Law Review, or specific, focused on one topic like the New York University Tax Law Review.

· To locate law reviews that discuss freedom of speech and flag burning:
SOURCE: Secondary Legal / Law Reviews, Combined
SEARCH: freedom of speech /10 burn! W/3 flag

C. Treatises

Treatises are one or multi-volume commentaries that provide in-depth analysis of an area of law; typically important cases and authorities are discussed and analyzed.

· To locate sections of the Social Security Practice Guide by Matthew Bender that deals with Medicare:
SOURCE: Secondary Legal / Matthew Bender Treatises and Materials / Healthcare / Social Security Practice Guide
SEARCH: heading (medicare)

· To locate the client interview sections of the Social Security Disability Claims Strategy And Tactics:
SOURCE: Secondary Legal / Area of Law Treatises / Social Security Disability Claims Strategy and Tactics
SEARCH: heading (client interview)

D. American Law Reports

American Law Reports (ALR's) provide editorial discussion of a topic of law, report on leading cases, as well as summarize other important cases in that topic area. Published by Lawyer’s Cooperative.

· To locate sections of the American Law Reports for annotations regarding child immunization:
SOURCE: Secondary Legal / American Law Reports (ALR2nd, ALR3rd, ALR4th, ALR5th, ALRFED, LED2nd)
SEARCH: immuniz! /10 child!

E. Restatements of Law

Restatements of Law illustrate the standards of law in a particular field set by expert lawyers and law professors; they are not available in every field. Published by the American Law Institute (ALI), an example is the multi-volume set, Restatement of Torts.

The ALI Restatements of Law source is menu-driven. You may browse through a series of topics in order to perform a search.

· To locate sections of the Restatements of Law – Torts which deal with medical malpractice:
SOURCE: Secondary Legal / ALI Restatements of Law
TOPIC: Torts; Rules, Comments and Notes
SEARCH: medical malpractice

F. Legal Encyclopedias

Legal Encyclopedias offer general outlines of the law and are arranged like encyclopedias in other disciplines. An example is American Jurisprudence (AmJur) from Lawyer’s Cooperative.

· To locate sections of American Jurisprudence which discuss attorney-client privilege:
SOURCE: Secondary Legal / American Jurisprudence 2d
SEARCH: heading (medicare)

G. Dictionaries

Dictionaries provide definitions of legal terms. An example is Ballentine’s Law Dictionary.

· To locate the definition of original jurisdiction in Ballentine’s Law Dictionary:
SOURCE: Reference / Law / Ballentine’s Law Dictionary, 3rd Edition
SEARCH: term (original jurisdiction)

Click HERE to go to the Primary and Secondary Practice Questions