Introduction to Secondary Sources

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

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

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

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

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.

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