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.
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Prepared by the Suffolk University
Law School Legal Practice Skills
Program and the Suffolk University
Law School Moakley Law Library.
To locate a treatise on your issue, use a library catalog: for
example, the Suffolk University Law School library catalog—
http://library.suffolk.edu/search—or WorldCat at
http://www.worldcat.org/ . 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.”
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.
The Suffolk University Law School library Web site has a list of
recommended treatises in the library collection on nearly seventy
subjects—http://www.law.suffolk.edu/library/research/az/index.cfm.
Some treatises are available on Westlaw and LexisNexis. You will
find links to them from the Suffolk University Law School library
catalog—http://library.suffolk.edu/search—and can browse title
lists on:
a.
LexisNexis under “Secondary Legal > Area of Law
Treatises,” and
b.
Westlaw under “Treatises, CLEs, Practice Guides.”
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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.
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C.
Using Legal Encyclopedias.
Legal encyclopedias provide a general narrative about legal topics with
footnotes that include citations to primary authority.
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Secondary authority can
help you understand a
legal issue and point you
to relevant primary
authority like cases,
statutes, and regulations.
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.
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—
http://www.law.suffolk.edu/library/research/databases.cfm.
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.
You can search full-text law reviews on Westlaw and LexisNexis,
but the databases have limited coverage of law reviews.
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
http://www.law.suffolk.edu/library/research/databases.cfm.
Corpus Juris Secundum (CJS) is available in the Suffolk
University Law School library and in the CJS database on
Westlaw.
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.”
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.
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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.
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E.
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).
Check the pocket part for updates!
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 CDROM 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.
Using Continuing Legal Education Materials
Continuing legal education materials are practice-oriented guides to
specific topics and are a great source for forms.
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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).
Use the Suffolk University Law School library catalog—
http://library.suffolk.edu/search—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.
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.
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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.
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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.
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H.
Save time when someone
else has already done the
research for you—in a
book, law review article,
or legal encyclopedia on
your issue.
Restatements are available in the Suffolk University Law School
library at the reserve desk.
Restatements are also available on:
a.
LexisNexis under “Secondary Legal > Restatements of the
Law,” and
b.
Westlaw under “Treatises, CLEs, Practice Guides.”
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.
ALRs are available in the library and in the ALR database on
Westlaw.
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).
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.
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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.
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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.
If you are still having difficulty, ask a librarian for help.
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—http://www.law.suffolk.edu/library/research/databases.cfm.
Even if you use an online version, take the time to read the
introductory “how to” materials.
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.
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:
• 617-573-8516,
• 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.
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