What Counts As Primary Legal Sources?

Primary sources are original materials that provide first-hand accounts of a topic, event, or time period. In law, primary sources are the actual law in the form of constitutions, court cases, statutes, and administrative rules and regulations. These sources include the United States Constitution, federal and state statutes, municipal codes, and court cases. They provide a direct account of the law and are considered authoritative. On the other hand, secondary sources explain, analyze, interpret, or evaluate the law but do not establish binding law. They include books, articles, legal encyclopedias, and treatises written about the law. While secondary sources can influence the creation and interpretation of the law, they are not determinative. Therefore, a law can be a primary source as it represents the original and formal statement of the law.

Primary sources and their authority

Primary sources are considered authoritative and are the first formal appearance of original research. In law, primary sources are the actual law, and they include constitutions, court cases, statutes, and administrative rules and regulations. They are the formal, written statements of law issued by government entities. These sources are considered primary as they are the first-hand accounts of the law, and they are created at the time the law is enacted.

The primary sources of law are the foundation of the legal system, and they carry the most weight in legal matters. They are the direct authority that issues from a law-making body. These sources are essential in legal research as they provide the exact wording of the law, which is crucial for interpretation and application. The primary sources of law are often published in print and online, ensuring accessibility to those who need them.

Constitutions, at both the federal and state levels, are primary sources. They outline the fundamental principles and rules that govern a country or state. For example, the Fourth Amendment to the U.S. Constitution, which protects people's rights against unreasonable searches and seizures, is a primary source.

Court cases, or case law, are another primary source. These are the reported decisions or opinions of courts, interpreting the law based on specific facts. Court cases create a body of precedent that guides future decisions, and they are published in print volumes known as "reporters."

Statutes, or laws enacted by legislatures, are also primary sources. These include both federal and state statutes, as well as municipal codes enacted by local councils. Statutes can be annotated, providing citations to relevant cases, or unannotated, containing only the text of the statute.

Administrative rules and regulations, made by executive departments and agencies, are also considered primary sources. These rules and regulations govern specific areas or industries and provide more detailed guidelines than the broader laws outlined in constitutions or statutes.

While primary sources in law provide the foundation, secondary sources are also important. Secondary sources explain, analyse, and critique the law. They include books, articles, treatises, and legal encyclopaedias, which help to interpret and understand the primary sources. However, it is essential to note that secondary sources do not establish binding law, even though they can influence its creation and interpretation.

Case law and its research

Case law is law based on judicial decisions. It is the body of law developed from judicial opinions or decisions over time. It is distinct from statutory law, which comes from legislative bodies, and administrative law, which comes from executive bodies.

Case law sources can be very helpful in determining how a law has been historically interpreted and applied, and how it might be treated in the future. The opinions issued in cases may provide a historical background to a topic and offer insight into the legal reasoning behind a judge's decision.

Case law research involves determining the case law that is binding or persuasive regarding a particular issue and gathering and analyzing the relevant case law. It involves searching for a specific case that applies the law to a set of facts in a particular way.

There are several ways to locate case law. Court opinions are typically cited to support legal conclusions, and often these cited cases include important and authoritative decisions on the issue as they are precedential. Commercial legal research databases, including Lexis, Westlaw, and Bloomberg, supplement cases with headnotes, which allow for the quick location of subsequent cases that cite the case being viewed.

Case law databases can also be used to connect cases together based on their subject matter. Court decisions from appellate-level courts are compiled in print volumes known as "reporters", which are arranged chronologically. Cases can be found using the citation, which gives the series, volume, and page number. There are also some free, online case law resources, such as Google Scholar, but the cases available through them are often limited, and they do not include headnotes or digest numbers.

The role of secondary sources

Secondary sources come in a variety of forms, including books, articles, journals, encyclopaedias, and treatises. They may restate the law, but they also provide discussion, analysis, description, explanation, or critique. They can be used to find similar cases to strengthen a legal argument. Secondary sources can also provide valuable insight into recent court decisions, new statutes, and topical legal trends. They are often used to cite and explain primary sources of law, such as constitutions, court cases, statutes, and administrative rules and regulations.

While secondary sources do not carry the weight of legal authority, they can still be cited in legal arguments and are considered important authorities. They can reflect the prevailing view on how courts interpret primary sources and are often relied upon by courts in their rulings. For example, Restatements of the Law are considered highly authoritative, and courts may cite specific sections to explain legal issues.

Nutshells are a type of secondary source that provides a basic overview of the history and established law in a particular area. They are intended to be thorough but not comprehensive introductions, giving more detailed information than an encyclopaedia but less theoretical and practical information than a treatise. Nutshells can be useful for finding additional primary law on a topic and are often used as quick reference guides.

In conclusion, secondary sources play a crucial role in legal research and practice. They help to enhance understanding, provide valuable insights, and support the development of legal arguments. By analysing and discussing primary sources of law, secondary sources contribute to the interpretation and potential evolution of the law.

Differences between primary and secondary sources

In the context of legal research, materials are generally divided into two broad categories: primary sources and secondary sources.

Primary Sources

Primary sources are the actual law, which can be in the form of constitutions, court cases, statutes, and administrative rules and regulations. They are the books and websites that comprise the formal, written statements of law issued by government entities. These sources include the constitution (either federal or state), statutes (laws enacted by legislatures), municipal codes (enacted by local councils), and cases (opinions handed down by courts).

Primary sources provide raw information and firsthand evidence. They are more credible as evidence and give direct access to the subject of your research. They are the main objects of your analysis and contain the actual law.

Secondary Sources

Secondary sources, on the other hand, interpret, analyze, describe, explain, or critique the law. They may restate the law but go beyond it by providing additional context or commentary. Secondary sources include books, articles, textbooks, reference books, and law reviews or journals. These sources are used to help locate primary sources of law, define legal terms, or aid in legal research. They can influence the creation and interpretation of the law but do not establish binding law.

Secondary sources are closely related to primary sources and often interpret them. They provide second-hand information and commentary from other researchers. They are used to better understand the legal principles at issue and to locate additional relevant laws.

Examples

An example of a primary source is the Fourth Amendment to the U.S. Constitution, which states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

A secondary source that discusses this primary source is the 2012 William and Mary Law Review article, "The Fourth Amendment Rights of Children at Home: When Parental Authority Goes Too Far," which analyzes and discusses one aspect of the Fourth Amendment.

How laws are published

Primary legal sources are the actual law in the form of constitutions, court cases, statutes, and administrative rules and regulations. They are the books and websites that comprise the formal, written statements of law issued by government entities. The law includes everything from a state's statutes to a city's ordinances to case law published by a court.

Legal publishing companies compile these statements of the law and make them available in printed volumes. Governmental agencies also publish the text of the law online. Legal publishing companies will often publish "annotated" editions of primary law. These contain footnotes with references to other helpful resources such as prior laws on the topic, legal encyclopaedias or law review articles, and cases decided on the specific section of law.

Court decisions from appellate-level courts are compiled in print volumes known as "reporters". Cases from Texas appellate courts can be found in the South Western Reporter and South Western Reporter – Texas Cases. Cases in reporters are arranged chronologically, so to find cases, one needs to know the citation. The citation tells you exactly in which series, volume, and page you'll find the case. There are some free, online case law resources such as Google Scholar, but the cases you can access through them are often somewhat limited. Additionally, you will only have access to the text of the decision. The free sources do not include headnotes or digest numbers that can help you find other cases.

In the United States, the lawmaking branch of the federal government is Congress. The idea for a bill can come from a sitting member of the US Senate or House of Representatives or be proposed during their election campaign. Bills can also be petitioned by people or citizen groups who recommend a new or amended law to a member of Congress that represents them. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. The bill is then put before that chamber to be voted on. If the bill passes one body of Congress, it goes to the other body to go through a similar process of research, discussion, changes, and voting. Once both bodies vote to accept a bill, they must work out any differences between the two versions. If the president chooses to veto a bill, in most cases, Congress can vote to override that veto and the bill becomes a law. But if the president does not sign off on a bill and it remains unsigned when Congress is no longer in session, the bill will be vetoed by default. This action is called a pocket veto, and it cannot be overridden by Congress.

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