Secondary Sources

Contents

• 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

Introduction

Contents

Primary and Secondary Law• 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

Introduction

• 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

Introduction

If secondary sources aren’t binding, why use them?

– 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.

Introduction

The most useful secondary sources are available on Westlaw® as well as in print:

– American Law Reports (ALR)

– American Jurisprudence 2d (Am Jur)

– Restatements of the Law

– 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

Introduction

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.

Introduction

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

Introduction

American Law Reports(ALR)

Contents

American Law Reports (ALR)• ALR editors select and report cases that represent specific

legal issues that are emerging, unsettled or changing and that are of interest to 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.

ALR

• In print, American Law Reports consists of six series.

– Federal Series (ALR Fed.), 1969 to date, analyzes only federal issues

– Fifth Series (ALR5th), 1992 to date, analyzes only state issues

– Fourth Series (ALR4th), 90 volumes, 1980 – 1992, analyzes only state issues

– Third Series (ALR3d), 100 volumes, 1965 – 1980. This and the earlier series analyze both state and federal issues.

– Second Series (ALR2d), 100 volumes, 1948 – 1965

– First Series (ALR), 175 volumes, 1919 – 1948

ALR

• 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 in the annotation

– Jurisdictional table of cited cases and statutes

– Text of the annotation

ALR

1 Features vary somewhat by series.

Total Client-Service Library and other research sources

Article Outline and Index

Table of JurisdictionsRepresented

Features of the ALR in Print

ALR

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

ALR

Finding Aids - ALR Indexes

• 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, 5th and 6th series

ALR

Finding Aids ALR Digest

• 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, ALR6th and ALR Fed are combined in one digest set.

ALR

Updating ALR Articles• 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.

ALR

Superseding and Supplementing Annotations• 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.

ALR

Superseding Articles

ALR

Superseded by

A red KeyCite flag isdisplayed on the supersededALR annotations.

• In the print ALR volumes, the lead case precedes the article or in ALR 5th and 6th, 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).

ALR

ALR on Westlaw• 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.

• Query: ti(“social host” /s liab!)

ALR

KeyCite and Using Westlaw as a Citator• 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.

ALR

Legal EncyclopediasAmerican Jurisprudence 2dCorpus Juris Secundum®

Contents

• 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.

Encyclopedias

American Jurisprudence 2d

• Provides a broad overview of a topic

• Identifies specialized vocabulary

• Provides citations to primary materials and ALR annotations

• Cross-references other secondary material

Encyclopedias

American Jurisprudence 2d (Am Jur 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.

Encyclopedias

Am Jur 2d

• 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.

Encyclopedias

Updating Am Jur 2d

• 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.

Encyclopedias

Other Am Jur Publications• 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.

Encyclopedias

AmJur Publications on Westlaw

•American Jurisprudence 2nd

•American Jurisprudence Proof of Facts

•American Jurisprudence Trials

Encyclopedias

Corpus Juris Secundum (C.J.S.)

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

• There are 164 volumes.1

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

Encyclopedias

Corpus Juris Secundum (C.J.S.)

• 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.

Encyclopedias

Corpus Juris Secundum

• 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.

Encyclopedias

Portion of a CJS section under Intoxicating Liquor

Restatements of the Law

Contents

Restatements of the Law• 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.

Restatements

• 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.

Restatements

Current Restatements include

• Agency (Third)

• 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 (Third)

• Trusts (Second)

• Unfair Competition (Third)

• Wills and Donative Transfers (Third)

Restatements

• 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.

Restatements

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

Restatements

– Agency

– Conflict of Laws

– Contracts

– Employment Law

– The Foreign Relations Law of the United States

– Judgments

– Law Governing Lawyers

– Property

– Restitution

– Security and Suretyship and Guaranty

– Torts

– Trusts

– Unfair Competition

– U.S. Law of International Commercial Arbitration

Restatements

Restatements 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 opens the Table of Contents for the Restatement at the Restatement section being displayed.

• Drafts of future series are included in the databases.

Restatements

Legal PeriodicalsLaw Reviews and Journals,Bar Journals, and Others

Contents

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

Periodicals

Law Reviews and Journals

• 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

Periodicals

Law Reviews and Journals (continued)

• 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.

Periodicals

• 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.

Periodicals

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.

Periodicals

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

Periodicals

Using KeyCite to Locate Periodicals

• 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.

Periodicals

TextsTreatises, Student Texts, Practice Guides, and Others

Contents

Treatises• 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’ Law of Torts

Texts

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

Texts

Student Texts: Hornbooks

• 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

Texts

Student Texts:Casebooks• 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

Texts

Student Texts:Nutshells

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

• There are over 100 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.

Texts

Practice Guides• 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

Texts

Law Dictionaries

Contents

Black’s Law Dictionary

• 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

Dictionaries

Words and Phrases

• 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(“vicarious liability”)

Dictionaries

Uniform Laws and Model Acts

Contents

Uniform Laws

• 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.

Uniform Acts

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• In the Global Search Box begin typing Uniform Commerical

Code • Find command: ula ucc 2-201

Uniform Acts

Model Acts• 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

– Uniform Laws Annotated database on Westlaw

Uniform Acts

Digest Paragraphs, Headnotes and Statutory Annotations

Contents

Headnotes

• 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!)

Digest Paragraphs

Digests

• 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.

Digest Paragraphs

Statutory Annotations• 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.

Digest Paragraphs

• 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

Conclusion