legal secondary sources

7/23/2019 Legal Secondary Sources

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Secondary Sources

1. Restatements of the Law

From Harvard Law School:

Restatements are highly regarded distillations of common law. They are prepared by the mericanLaw !nstit"te #L!$% a prestigio"s organi&ation comprising '"dges% professors% and lawyers. The L!(saim is to distill the )blac* letter law) from cases to indicate trends in common law% and occasionally torecommend what a r"le of law sho"ld be. !n essence% they restate e+isting common law into a seriesof principles or r"les.

Restatements cover broad topics% s"ch as ,ontracts or -roperty. They are organi&ed into chapters%titles% and sections. Sections contain a concisely stated r"le of law% comments to clarify the r"le%hypothetical e+amples% e+planation of p"rpose% as well as e+ceptions to the r"le.Restatements are not primary law. "e to the prestige of the L! and its painsta*ing drafting process%however% they are considered pers"asive a"thority by many co"rts. The most heavily citedRestatements are the Restatement of Torts and the Restatement of ,ontracts./

From Tarlton Law Library:

Restatements are secondary so"rces that see* to restate/ the legal r"les that constit"te thecommon law in a partic"lar area into a series of principles or r"les. They are prepared by the

merican Legal !nstit"te #L!$% an organi&ation formed in 102 consisting of prominent '"dgeslawyers and teachers. The L!(s p"rpose is to distill the blac* letter law/ from cases% to indicate atrend in common law and% occasionally% to recommend what a r"le of law sho"ld be.

There are restatements on a n"mber of s"b'ect areas% incl"ding gency% ,on3ict of Laws% ,ontracts%-roperty and Torts. complete list of the restatements is available at the ),"rrent Restatements) tab4ach restated s"b'ect area is divided into n"mbered chapters and s"bdivided into topics and sections.

ll restatements go thro"gh a n"mber of drafts before they are 5nali&ed. 6o" may see references topreliminary drafts% m"ltiple tentative drafts and proposed o7icial drafts before the 5nal form of arestatement is p"blished. To date% there are three series of restatements in some s"b'ects. Somes"b'ects have a third series with no 5rst or second series #e.g.% Restatement #Third$ of the Law8overning Lawyers$. The issuance of a second or third series of the Restatement does not repeal or

otherwise aect an earlier version of the Restatement that has been adopted by a court orlegislature./

From 9ent Law:

Restatements are secondary so"rces that see* to )restate) the legal r"les that constit"te thecommon law in a partic"lar area. They are written by the merican Law !nstit"te #L!$% a prestigio"slegal organi&ation composed of noted professors% '"dges and lawyers. The L! has completedRestatements in 1 areas of law incl"ding Torts% ,ontracts% -roperty% ,on3ict of Laws% ForeignRelations Law% and -rod"cts Liability.

!n drafting a Restatement% the L! divides the law analytically into h"ndreds of *ey legal iss"es orsit"ations and then writes a r"le of law governing that iss"e or sit"ation% based on the r"le preferred

by the ma'ority of states #or in some instances% the r"le preferred by the drafting committee$. 4achr"le is given a section n"mber and is follow by ),omments) which e+plain the r"le and the reasonsfor its adoption. Sometimes the ,omments are followed by )!ll"strations%) which show how the r"lewo"ld apply in speci5c fact sit"ations. Finally% most Restatement provisions concl"de with )Reporters;otes%) which give the history of the provision and cite to the a"thority from which the r"le is derived.

Restatements are one of the most highly regarded types of secondary a"thority and have e+ertedconsiderable in3"ence on the '"dicial process.


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Restatements can be very "sef"l in sit"ations where the law in the '"risdiction yo" are researching is"nclear or non=e+istent. !n s"ch a sit"ation% yo" can rely on the Restatement to provide a clearlyartic"lated r"le that is most li*ely the one adopted by a ma'ority of '"risdictions. lternatively% wherethe '"risdiction whose law yo" are researching has adopted a Restatement section #or cited it withapproval$% yo" can "se the comments and ill"strations to that section to interpret and apply the legalr"le. !n addition% beca"se Restatements are heavily annotated with case citations% they can be ane+cellent case=5nding tool.

n the other hand% if yo" are "sing the Restatement to 5ll a gap in the law of the

'"risdiction whose law yo" are researching% it ma*es sense to cons"lt the most recent series.

4ach Restatement consists of a set of topical vol"mes% which contain the act"al legal r"les anddrafters( commentary% and a set of ppendi+ vol"mes% which contain s"mmaries of cases which haveadopted or interpreted the Restatement r"les./

. Looseleaf Services

From 8eorgetown Law Library:

looseleaf service is a pop"lar type of legal reso"rce which brings together a variety of types ofinformation concerning a partic"lar topic or area of law. looseleaf service is so called beca"se it ismade "p of pages or pamphlets 5led in looseleaf binders% often a m"lti=vol"me set. This format allowsc"rrent information to be easily added to the e+isting materials. The ease of "pdating the bindersallows s"pplementation to be added fre?"ently% even wee*ly in some cases.


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From Aloomberg A;:

Looseleaf services are p"blications that bring together and analy&e cases% stat"tes% reg"lations% andother bodies of law in one comprehensive service B either as a m"lti=vol"me print set or as anelectronic database.

Looseleaf services are written by legal editors at p"blishing companies or by professionapractitioners hired to write and edit material. These services synthesi&e the law% o7er ways for "sersto locate information in the body of law% and o7er one=stop shopping/ for legal a"thorities in speci5cs"b'ect areas. Looseleaf services in print are often called man"als% g"ides% or portfoliosC on the webthey are "s"ally called libraries or Reso"rce ,enters.

Traditionally% looseleaf services were print services whose pages were replaced or added to at reg"larintervals to remain c"rrent. 4+amples of these m"lti=vol"me services incl"de A;Ds Labor RelationsReporterT< and Ta+ ften% they answer the legal ?"estion yo" are researching and provide a citation to the*ey case or reg"lation.

@se looseleaf p"blications to:a. Read bac*gro"nd information on an area of law. Find o"t if an iss"e is governed by case law% a

federal stat"te% state law% or other a"thorities. This is partic"larly helpf"l if yo" *now little abo"tan area.

b. Locate citations to *ey a"thorities. Looseleaf p"blications cite relevant cases% federal and statestat"tes% and reg"lations in a legal area.


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There are two primary "ses for legal encyclopedias. First% the articles can be ?"ite "sef"l as a generalintrod"ction to an area of law which is new to yo". They provide more in=depth information than alegal dictionary% while being nearly as accessible and easy to "se. Second% encyclopedias are a way to5nd citations to cases and other "sef"l materials on a partic"lar iss"e. These two "ses ma*e theencyclopedias a very good place to begin ma'or research% whether for an academic paper or a legalmemorand"m. However% the legal encyclopedias are not intended to be "sed as a"thoritative so"rceson the law in any area% and th"s are not cited in briefs% memoranda% or scholarly papers.

@sing a legal encyclopedia is straightforward: loo* "p yo"r topic in the inde+ vol"mes at the end ofthe set% identify the section or sections where yo"r topic is disc"ssed% t"rn to the vol"me containingthose sections% and read them. t the beginning of each ma'or topic% yo" will 5nd two o"tlines of whatis covered in the article: 5rst a broad general o"tline% and second a very detailed o"tline. Theseo"tlines may be "sef"l for placing yo"r speci5c topic in conte+t. t the beginning of each entry yo"will also 5nd a note on )scope%) indicating what will be covered in the article% and what will be treatedelsewhere. This is worth reading% to be s"re yo"r partic"lar iss"e is not covered better in a separatearticle. Following these preliminary materials is the te+t of the topical disc"ssion. The articles andfootnotes are "pdated in poc*et parts fo"nd in each vol"me. !n addition to these standard feat"res%each encyclopedia has its own "ni?"e feat"res. Aeca"se of these di7erences% yo" may begin to preferone encyclopedia over the other in certain circ"mstances. However% when beginning ma'or research%it is a good idea to consider "sing both./

From Loyola @niversity ,hicago:

Legal encyclopedias are secondary so"rces which provide a general overview of almost every legals"b'ect. The two ma'or sets of legal encyclopedias aremerican !urisprudence "d#a*a )m"r)$ and#orpus !uris Secundum#a*a ),S)$. Aoth sets contain over 1II vol"mes% arranged alphabetically bytopic% and both incl"de a general inde+ #also comprising several vol"mes$ for the entire set% which yo"can 5nd after the last vol"me. s with other secondary so"rces% legal encyclopedias s"mmari&e thelaw rather than provide the law itself.

Legal encyclopedia articles can be very "sef"l if yo" are beginning to research an "nfamiliar area ofthe law = they are a great so"rce for 5nding a brief review of the law and some the *ey terminology inthe area% which can in t"rn help yo" create better online *eyword searches. !n addition% li*e anyother secondary so"rce% they contain copio"s references and citations to primary so"rce materials.However% legal encyclopedias are not intended to be a"thoritative so"rces of the lawC therefore they

generally sho"ld not be cited in co"rt doc"ments or in scholarly articles.

Jhen "sing a print legal encyclopedia% it is best to start by searching for yo"r terms in the indexvolumes#at the end of the set$ rather than in the main vol"mes. This is an important step beca"sethe main vol"mes are arranged alphabetically by ma'or topic #e.g. in both m"r and ,S% the s"b'ect)


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"pdates. >ccasionally% there is too m"ch material for a pac*et part to 5t inside the main vol"me. !nthat case% yo" will 5nd "pdates in a soft=bo"nd s"pplement shelved ne+t to the main vol"me% b"t thetechni?"e for 5nding "pdates is the same. 6o" can also "se the online versions of the encyclopedia inLe+is or Jestlaw to ens"re that yo"r "pdating is complete.

The two ma'or legal encyclopedia sets are s"bstantially similar. They are str"ct"red the essentiallythe same format% and since both are p"blished by Jest p"blishing they incl"de references to Topicsand 9ey ;"mbers from the Jest igest System. !n addition% both contain references to relevant

merican Law Reports annotations and to other secondary so"rces. co"ple of points of comparison:a. ,S claims to be comprehensive in its case citations% while m"r only cites selected cases.b. m"r incl"des more of an emphasis on federal stat"tory citations than ,S. However% each

vol"me in both sets incl"des a )Table of Laws and R"les) which lists citations to articles disc"[email protected]. stat"tory and constit"tional sections% federal reg"lations% and model r"les./

K. Hornboo*s

From The @niversity of ,hicago Law Library:

orn!oo"sare one=vol"me treatises written primarily for law st"dents on s"b'ects typically coveredby law school co"rses. @nli*e caseboo*s% which are collections of cases #or parts of cases$ chosen tohelp ill"strate and stim"late disc"ssion abo"t legal iss"es% hornboo*s attempt to s"mmari&e ande+plain the law in a speci5c area. -erhaps the best=*nown hornboo*s are those p"blished by Jest in)Jest(s Hornboo* Series%) which are easily identi5able by their distinctive green bindings and incl"detitles s"ch as #ivil $rocedureby -rofessors Friedenthal% 9ane and


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Law st"dents who are '"st beginning to draft a doc"ment often t"rn to forms to identify the lang"agethat will accomplish their goals. 4+perienced attorneys "se forms as chec*lists% to ens"re they havenot overloo*ed any possibilities. !n the case of )boilerplate) contracts #contracts "sing standardi&edlang"age$% the "se of forms saves the drafter(s time. !n some areas% s"ch as ban*r"ptcy and patentpractice% the "se of certain forms is re?"ired by law. lso% many non=lawyers "se form boo*s for helpwith writing a lease% a will% or a contract.

The so"rces for forms in the library can be divided into the following categories:a. 8eneral formsb. Forms for partic"lar s"b'ects or proceedingsc. Forms for partic"lar geographic '"risdictionsd. ,ombinations of types and 2

Aoo*s containing general forms are often arranged as encyclopedias% with an alphabeticalarrangement of the s"b'ects and forms.


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a. Sample forms are '"st that == samples.

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