Real World Research February 27, 2008 Dean C. Rowan & Teresa Stanton, Reference Librarians Are Secondary Sources Merely Second Rate? Legal Encyclopedias, ALR, and Restatements

Gratuitous Allusion “It is a maxim, that those to whom everybody allows the second place have an undoubted title to the first.” — Jonathan Swift, Tale of a Tub, Dedication (1704)

Legal Encyclopedias “Only a fool cites to legal encyclopedia as persuasive authority.” * “Imposing…” “Grand attempts to encompass everything…” “For all of their flaws, [they] have virtues”:  Provide useful background  Inform you of the landmark cases  Acquaint you with important jargon * Robert C. Berring & Elizabeth A. Edinger, Finding the Law, 12th ed. (Thomson West 2005) 314

Legal Encyclopedias Corpus Juris Secundum  Westlaw CJS American Jurisprudence 2d  Lexis Secondary Legal>Jurisprudences & Encyclopedias>American Jurisprudence 2d  Westlaw AMJUR California Jurisprudence 3d  Westlaw CALJUR

Print versus Online Print Easy to browse Clarity of context Orderly index access Unwieldy updating Monumental consumers of space, costly Online Keyword searching Integrated, real-time updating Links to related materials Potentially costly Risk of losing focus

Quick Tour of AmJur 2d Berring & Edinger: “The narrative is often more clearly presented than in CJS.” General Index and volume indices Alphabetical arrangement, but…  Broad topics with detailed, structured organization  See, e.g., “Pensions and Retirement Funds,” 60A AmJur 2d 1, following…

AmJur 2d, vol. 60A A detailed table of contents to the volume runs nearly 50 pagesdetailed table of contents Corresponding text includes references to cases, statutes, West Key Number Digest topics, and related research resourcestext The index to the volumeindex Reality check: Compare Wikipedia on ERISA.ERISA

AmJur 2d Alternatives Corpus Juris Secundum (C.J.S.)  Westlaw CJS California Jurisprudence (CalJur)  Westlaw CAJUR  A more extensive Witkin Summary  Not a ubiquitous resource, i.e., many states do not have analogous publications

Additional AmJur Components ALR and ALR Federal AmJur Forms AmJur Pleading and Practice Forms AmJur Trials Proof of Facts Federal Procedure AmJur Deskbook New Topic Service

American Law Reports (A.L.R.) Annotations An extensive, narrowly focused article (annotation) often paired with a single case illustrative of a point of lawarticlesingle case Detailed analysis of the point of law Substantial discussion of and reference to court holdings, jurisdiction by jurisdiction Digest to 3d through 6th and Fed Digest Available on Westlaw (ALR et al.)

American Law Reports (cont.)  Coverage: ALR Fed. covers federal cases and topics ALR 6th, 5th and 4th series cover state cases and topics ALR 3d, 2d, and ALR cover federal and state cases and topics  An Index covering 2d through 6th and FedIndex  Mode of updating varies for the series (pocket parts, Later Case Service, Blue Book of Supplemental Decisions)

American Law Reports (cont.) Some annotations have been supplemented (esp. early ones), others superseded. Use the Annotation History Table (located in each volume of the Index), Westlaw, or KeyCite to identify supplemental and superseding annotations.Annotation History TableWestlaw KeyCite

Restatements of the Law “…did prove to be quite influential, and were cited by the courts with great frequency, but in the end, they became just another research source.” — Berring & Edinger 317. Drew from case law, not legislation Distilled the common law, both descriptive and prescriptive Prepared by lawyers, scholars, and judges expert in the nominal field

Restatements of the Law (cont.) Big topics: contract, tort, property Narrower topics: suretyship and guaranty, unfair competition, restitituion Available on Lexis, Westlaw, and for the most obsessive fan, HeinOnline (preliminary, council, and tentative drafts)HeinOnline An elaborate apparatus of pithy statements of the law, commentary, illustrations, and notesstatementscommentary

Restatements of the Law (cont.) The ALI draftsmen “took fields of living law, scalded their flesh, drained off their blood, and reduced them to bones…. They expended their enormous talents on an enterprise which, today, seems singularly fruitless…. Incredibly, the work of restating (and rerestating) is still going on.” — Lawrence M. Friedman, A History of American Law (2d ed. 1985) (quoted in Andrew Kull, “Restitution and Reform,” 32 S. Ill. U.L.J (2007)).

Wrap-up Keep in mind the distinction between persuasive and binding authority. Use secondary sources to initiate research by identifying important statutes and cases, or gleaning background information about an unfamiliar area of the law. Take a few minutes to examine the organization and finding tools of a resource in either its hard copy or online form.

Wrapping-up the Wrap-up Similarly, take time to update your information. As always, ask a Reference Librarian for assistance:  Identifying useful resources  Using new resources