Transcript Secondary Sources - Westlaw Sign-On

Secondary Sources
Contents
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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
Introduction
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:
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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
American Law Reports
(ALR)
Contents
ALR
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
1 Features
vary somewhat by series.
ALR
Features of the ALR in Print
Total Client-Service Library
and other research sources
Article Outline
and Index
Table of Jurisdictions
Represented
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, and 5th 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, 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
62 ALR4th 16 has
superseded both
75 ALR2d 833 and
97 ALR3d 528.
Superseded by
Superseded in Part by
A red KeyCite flag is
displayed on the superseded
ALR annotations.
ALR
• In the print ALR volumes, the lead case precedes the article or,
in ALR5th, 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.
• Database: ALR
Query: ti(“social host” /s liab!)
ALR
ALR Features on
Westlaw
Click Document Outline on the Links for tab to
display online finding aids for each ALR article.
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.
Legal Encyclopedias
American Jurisprudence 2d
Corpus Juris Secundum®
Contents
Encyclopedias
• 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
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.
in
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 Databases on Westlaw
• AMJUR – Am Jur 2d
• AMJUR-LF – American Jurisprudence Legal Forms
• AMJUR-PP – American Jurisprudence Pleading and
Practice Forms Annotated
• AMJUR-POF – American Jurisprudence Proof of
Facts
• AMJUR-TRIALS – American Jurisprudence Trials
• AMJUR-POFTR – American Jurisprudence Proof of
Facts and Trials Combination
• AMJUR-ALL – includes all American Jurisprudence
databases
Encyclopedias
Database: AMJUR-ALL
Query: ti(“social host”/s liab!)
This Am Jur Proof of Fact document was retrieved from the
AMJUR-ALL database. Along with the text and references to
cases and other legal documents, it contains sample interrogatories,
checklists and other practical legal materials.
Click Document Outline on the Links for tab to display links to
materials included in the document.
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 150 volumes.1
1 The last volume is numbered 101 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
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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.
• Corpus Juris Secundum is in the CJS database on Westlaw.
Portion of a CJS section under Intoxicating Liquor in the
CJS database on westlaw.com
Restatements of the Law
Contents
Restatements
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
Comments
• 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 (Second)
• Apportionment of
Liability (Third)
• Conflict of Law (Second)
• Contracts (Second)
• Foreign Relations (Third)
• Judgments (Second)
• Law Governing Lawyers
(Third)
• Products Liability (Third)
• Property (Third)
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Prudent Investor Rule (Third)
Restitution (First)
Security (First)
Suretyship and Guaranty
(Third)
Torts (Second)
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.
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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
Restatement databases on Westlaw are
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REST – all Restatements of the Law
REST-AGEN – Agency
REST-CONFL – Conflict of Laws
REST-CONTR – Contract Restatement
REST-FOREL – The Foreign Relations Law of the United States
REST-JUDG – Judgments
REST-LGOVL – Law Governing Lawyers
PL-REST – Product Liability
REST-PROP – Property
REST-RESTI – Restitution
REST-SEC – Security and Suretyship and Guaranty
REST-TORT – Torts
REST-TRUST–Trusts
REST-UNCOM – Unfair Competition
Restatements
TOC
• 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 on the Links for tab opens the
Table of Contents for the Restatement at the Restatement
section being displayed.
• Drafts of future series are included in the databases.
• Database: REST-TORT
Search: dram-shop /p “social host” /s liab!
Legal Periodicals
Law Reviews and Journals,
Bar Journals, and Others
Contents
Periodicals
Legal periodicals are published by many sources. There are
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Law School Reviews and Journals
Bar Association Journals
Legal Newspapers
Topical and Special Interest Periodicals
Newsletters
Periodicals
Law Reviews and Journals
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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
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Bar Association 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.
Legal Newspapers
• 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
Database: LEGNEWSL
Search: “social host” /s liab!
• 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
Online Access to Legal Periodicals
Westlaw databases include
– LEGALNP –Legal Newspapers
– LEGNEWSL – Legal Newsletters Multi-base
– JLR – law school law reviews and journals
– TP-ALL – all law reviews and journals, bar journals,
other periodicals, texts, and treatises
– Each periodical also has a separate database that can be
individually searched.
– Database: TP-ALL
Query: ti(“social host” /s liab!)
retrieves 53 articles, most with helpful text and crossreferences.
Periodicals
Finding Legal Periodicals
Index to Legal Periodicals & Books
(ILP)
• Originated in 1908
• Indexes approximately 600 English-language periodicals
• Access
Database: ILP
– Author/Subject Index
Query: ti(“social host” /s liab!)
– Table of Cases
– Table of Statutes
– Book Review Index
• ILP database on Westlaw (cannot
be
accessed by all law schools)
– can be searched using Terms & Connectors, Natural
Language, or Fields.
Periodicals
Finding Legal Periodicals
Current Law Index (CLI)
• Coverage begins in 1980
• Indexes approximately 850 worldwide legal periodicals,
including practice-oriented periodicals
• Titles are indexed in English
• Issued monthly, with quarterly and annual cumulative
issues
• Access
– Subject/Proper Name Index
– Author/Title Index
– Table of Cases
– Table of Statutes
Periodicals
Legal Resource Index (LRI) and Current
Index to Legal Periodicals (CILP)
• LRI is the online counterpart of CLI.
– Updated daily
– Contains law related newspapers and articles selected
from non-legal periodicals that are law related
• LRI database on Westlaw (cannot be accessed at all law
schools)
– Can be searched using Terms & Connectors, Natural
Language, and Fields.
• CILP database contains the eight most recent weeks of the
Current Index to Legal Periodicals.
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.
Texts
Treatises, Student Texts, Practice
Guides, and Others
Contents
Texts
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, The 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 118 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
Law Dictionaries
Contents
Dictionaries
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
• has the database identifier DI in WestMate®
• has the database identifier BLACKS in westlaw.com
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(“social host”)
Uniform Laws
and Model Acts
Contents
Uniform Acts
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
• Search: ci(“uniform commercial 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
– ULA database on Westlaw
Digest Paragraphs, Headnotes
and Statutory Annotations
Contents
Digest Paragraphs
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.
The language of the Case Headnote, the Digest
Paragraph, and the Statutory Annotation is identical.
The language of headnote
number 2 of the Koehnen
case. It references Minnesota
statute 340A.801
The language in the digest
paragraph that refers to
headnote 2 of the Koehnen
case.
The language of the annotation
to Minnesota Statute 340A.801
that refers to the Koehnen case.
Conclusion
• 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