Legal Research Refresher: Secondary Authority Guide

Transcription

1 Legal Research Refresher: Secondary Authority Guide All legal authority that does not come from one of the three branches of government legislative, executive, and judicial is secondary authority. Secondary authority is written by academics, judges, practitioners, and even by law students. Secondary authority can be useful in providing an understanding of legal issues, as well being a research tool that can lead you to primary authority on point as well as to other secondary authority. As a rule of thumb, better secondary authorities state legal propositions and provide analysis, and heavily footnote to primary authority as the basis for the analysis. Also, with the exception of law review articles, which by their nature are written to advocate for a proposition, good secondary authority explains how the law is applied without advocating for a position. A. Finding Treatises. A treatise is a book, or series of books, that gives a scholarly explanation of the law. Treatises are organized around either a specific topic or jurisdiction. For example, hornbooks, such as Calamari and Perillo on Contracts, are single-volume treatises. Prepared by the Suffolk University Law School Legal Practice Skills Program and the Suffolk University Law School Moakley Law Library. 1. To locate a treatise on your issue, use a library catalog: for example, the Suffolk University Law School library catalog or WorldCat at Do a keyword search using terms related to your issue. If you do not find anything, try searching the broader topic that includes your issue. For example, if you do not find anything using the search terms armed robbery, try using the search terms criminal law. 2. You may not find a treatise that focuses solely on the law in your jurisdiction, but a broader treatise may still have references to cases and statutes from your jurisdiction. 3. The Suffolk University Law School library Web site has a list of recommended treatises in the library collection on nearly seventy subjects 4. Some treatises are available on Westlaw and LexisNexis. You will find links to them from the Suffolk University Law School library catalog and can browse title lists on: a. LexisNexis under Secondary Legal > Area of Law Treatises, and b. Westlaw under Treatises, CLEs, Practice Guides. 1

2 B. Finding Law Reviews Law reviews contain articles on specific issues written by scholars, professors, experts, judges, and law students. Generally, the articles address not just what the law is, but what the author thinks it should be. 1. The best way to find law review articles on your issue is to use an index. There are two popular print indices to law review articles available in the Suffolk University Law School library: a. Index to Legal Periodicals and Books, and b. Current Law Index. 2. There are several online indices: a. The Wilson Index to Legal Periodicals and LegalTrac, an online version of the Current Law Index, are both available through the Suffolk University Law School library Web site b. Both Westlaw and LexisNexis have the Index to Legal Periodicals and Legal Resource Index, which is another online version of the Current Law Index. 3. You can search full-text law reviews on Westlaw and LexisNexis, but the databases have limited coverage of law reviews. 4. The full text of law review articles, including many older articles that do not appear on Westlaw and LexisNexis, can be found on HeinOnline, a subscription database accessible from the Suffolk University Law School library Web site at C. Using Legal Encyclopedias. Legal encyclopedias provide a general narrative about legal topics with footnotes that include citations to primary authority. Secondary authority can help you understand a legal issue and point you to relevant primary authority like cases, statutes, and regulations. 1. Corpus Juris Secundum (CJS) is available in the Suffolk University Law School library and in the CJS database on Westlaw. 2. American Jurisprudence, 2d (Am. Jur.) is available in the Suffolk University Law School library, in the AMJUR database on Westlaw, and on LexisNexis by browsing Secondary Legal > Jurisprudences & Encyclopedias. 3. In addition to the general encyclopedias, some states have a state specific legal encyclopedia that only covers the law of that jurisdiction. For example, in New York there is New York Jurisprudence, 2d. 2

3 D. Using Practice Guides Generally, practice books will provide analysis of a legal issue with references to cases, statutes, and regulations. They are also useful sources for forms. 1. If you do not have a citation, start by looking for your search terms in the index to the guide, which is usually in the last volume of multi-volume sets. The index will point you to a title and section number(s). 2. Check the pocket part for updates! 3. Examples of practice guides include the Massachusetts Practice Series and the New Hampshire Practice Series. The Massachusetts Practice Series is available in print, in the MAPRAC database on Westlaw, and through Premise on the CD- ROM terminal in the Suffolk University Law School library. In addition, Massachusetts Pleading and Practice is a great source for forms and is keyed to the Massachusetts Rules of Civil Procedure. E. Using Continuing Legal Education Materials Continuing legal education materials are practice-oriented guides to specific topics and are a great source for forms. 1. The Massachusetts Continuing Legal Education (MCLE) treatises cover Massachusetts law (e.g., Appellate Practice in Massachusetts, Massachusetts Superior Court Criminal Practice Manual, Massachusetts Business Corporations). 2. Use the Suffolk University Law School library catalog to see if the library has an MCLE book on your research topic. Do an author search for Massachusetts Continuing Legal Education. In the list of results, select the one with around 600 entries. Narrow the results by clicking on Limit Search and typing keywords from your topic in the Words in the Title field. 3. MCLE books are also available on: a. Westlaw in the MA-CLE database, b. LexisNexis under Massachusetts > Search Analysis & CLE Materials > CLE Materials, and c. LOIS on the CD-ROM terminal in the Suffolk University Law School library. Don t reinvent the wheel find a secondary source with forms and you will not need to create legal documents from scratch. 3

4 F. Using Restatements of the Law. Restatements provide general statements of common-law rules found across most jurisdictions. They include comments, illustrations, and case citations. 1. Restatements are available in the Suffolk University Law School library at the reserve desk. 2. Restatements are also available on: a. LexisNexis under Secondary Legal > Restatements of the Law, and b. Westlaw under Treatises, CLEs, Practice Guides. G. Using American Law Reports (ALR) ALR Annotations cover particular areas of law, chosen by the publisher. An annotation will include a discussion of how different states treat a topic, centered around one case that is reprinted in the ALR and that illustrates the topic. 1. If you do not have a citation, use the ALR index to find annotations on your issue. Annotations are not state-specific, but may provide references to relevant cases or statutes. 2. ALRs are available in the library and in the ALR database on Westlaw. H. Using Loosleaf Services Looseleafs fall into a special category of treatises. One advantage looseleaf titles have over regular bound treatises is that they are updated regularly. Many are updated on a weekly or monthly basis. The pages of a looseleaf are compiled in one or more looseleaf binders. This makes them easy to update, and new updated pages are substituted regularly for existing pages. Some looseleaf services add supplementary material chronologically in new sections. Two well-known looseleaf publishers are Commerce Clearing House (CCH) and Bureau of National Affairs (BNA). Save time when someone else has already done the research for you in a book, law review article, or legal encyclopedia on your issue. For certain topics, looseleaf services can be a very useful starting place, as they provide an overview of both primary and secondary authority. Looseleafs typically focus on one area of the law and are especially useful, and most often found, in areas that involve administrative regulations, such as tax and labor. Looseleafs contain primary authority such as the text of statutes and regulations, and either full text or summaries of cases and agency decisions. They also contain secondary authority such as explanations and discussions of the material, practice tips, and references to additional materials. In addition, they frequently contain summaries of the latest developments on the topic. Looseleafs usually contain multiple indexes, which refer to numbered sections and paragraphs rather than pages. 1. When you receive an assignment involving a regulated area such as tax or labor, ask the assigning attorney if there is a useful looseleaf that you should consult. 4

5 2. Always read the how to use this material or similar section of the looseleaf. Otherwise, you may find yourself wasting time and not finding all of the information on your topic contained in the looseleaf. 3. If you are still having difficulty, ask a librarian for help. 4. Many looseleafs are now available on Westlaw or LexisNexis. Additionally, some BNA looseleafs may be accessed via the Suffolk University Law School Library Research Databases page Even if you use an online version, take the time to read the introductory how to materials. 5. Unless the material is unavailable elsewhere, you should not cite to the looseleaf. Rather, you should cite to the case, statute, or regulation as a primary authority. The looseleaf, however, is a means to locate these sources. 6. Even though the looseleaf material is relatively current, you should always use a citator, such as Shepard s on LexisNexis and KeyCite on Westlaw, to update primary authority. Suffolk University Law School students and alumni who would like research assistance should contact the Suffolk University Law School Moakley Law Library reference librarians at: , lawref@suffolk.edu, or the reference desk on the sixth floor of the library. Massachusetts Pleading and Practice is a great source for sample complaints, interrogatories, motions, and other procedural forms. 5