Kara Sears
Legal materials are divided into two categories: primary and secondary sources. Primary sources establish the law and include cases, statutes, regulations, treaties, and constitutions. Secondary sources, on the other hand, explain, analyze, interpret, discuss, and cite primary sources without establishing binding law. They include books, articles, digests, and treatises. Case law is a primary source as it refers to the reported decisions or opinions of courts that interpret existing law based on specific facts. Judges often refer to past decisions or case law when ruling on new cases. However, secondary sources are still important as they can reflect the prevailing view of how courts interpret primary sources and can be used to gain insight and guidance on legal arguments. Therefore, it is essential to understand the distinction between primary and secondary sources when conducting legal research.
| Characteristics | Values |
|---|---|
| Definition | Secondary sources explain the law but do not establish binding law. |
| Examples | Legal treatises, hornbooks, law journals, digests, annotations, restatements, jury instructions, and law reviews. |
| Use Cases | Secondary sources are used to gain a more complete understanding of a legal topic, to save time and energy, and to quickly get up to speed on unfamiliar areas of law. |
| Advantages | Secondary sources can provide valuable guidance and insight from legal experts, offer a reliable flavor to legal arguments, and point to the most relevant cases and statutes. |
| Research Process | Secondary sources are consulted during the initial stages of legal research to help identify the relevant primary sources and frame the legal issue. |
Explore related products
![Problems in Contract Law: Cases and Materials [Connected eBook with Study Center] (Aspen Casebook)](https://m.media-amazon.com/images/I/71KVwHbBZ1L._AC_UY218_.jpg)
What You'll Learn
Secondary sources explain the law
Secondary sources are an excellent starting point for legal research as they offer a comprehensive understanding of the legal principles at issue. They can point researchers towards the most relevant cases and statutes, saving time and providing direction. For example, digests are multi-volume indexes to the law organised by topic and "key number" classification systems. Cases are listed in reverse chronological order, and the citations provided can be used to locate the full-text of the cases. Westlaw's Secondary Sources collection offers guidance from legal experts in various areas of law, as well as access to a large collection of analytical titles.
Law reviews, published by law schools, are another valuable secondary source. They include summaries of legal topics and citations to primary and secondary sources, making them excellent tools for expanding legal research. Legal treatises and hornbooks are also secondary sources that provide in-depth treatments of specific areas of law, often written by specialists in that field. These books can be very useful in finding case law on a particular subject.
Additionally, some secondary sources are highly authoritative and may be cited by courts in their rulings. Restatements of the Law, for instance, summarise the basic doctrines of an area of law and are often relied upon by courts. Jury Instructions are another example of secondary sources that are widely used by state and federal courts as references when submitting instructions to juries.
Intriguing Law Cases: What Makes Them Interesting?
You may want to see also
Explore related products
![Criminal Law and Its Processes: Cases and Materials [Connected eBook with Study Center] (Aspen Casebook) (Aspen Casebook Series)](https://m.media-amazon.com/images/I/61p34wz6jxL._AC_UY218_.jpg)
$86.49 $388.95
They can influence law creation and interpretation
Case law, also used interchangeably with common law, is based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals. These past decisions are called "case law" or precedent. Stare decisis, a Latin phrase meaning "let the decision stand", is the principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions. These judicial interpretations are distinguished from statutory law, which are codes enacted by legislative bodies, and regulatory law, which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing adjudication, for example, in criminal proceedings or family law.
Case law influences law creation and interpretation in several ways. Firstly, it provides a framework for interpreting and applying the law. By citing previous cases and judicial decisions, case law helps clarify the legal rationale behind a particular ruling, ensuring consistency and predictability in legal outcomes. This is particularly important in common law countries, such as the United States, where the legal system derives from English common law traditions.
Secondly, case law can fill in gaps and provide flexibility in statutory law. In certain areas, such as copyright law, statutes may intentionally leave room for interpretation to allow for case-by-case application. Case law then plays a crucial role in shaping and refining these laws over time, as courts issue decisions that clarify and expand upon the original legislation. This dynamic process ensures that the law remains adaptable to new situations and evolving societal needs.
Additionally, case law helps establish binding precedents that lower courts must follow. The principle of stare decisis dictates that lower courts adhere to the decisions of higher courts in their jurisdiction. This hierarchical structure ensures uniformity and consistency in legal interpretations across different levels of the court system. However, it is important to note that not all case law is published or binding, and higher courts can overturn their own precedents or the decisions of lower courts in specific circumstances.
Furthermore, case law can influence the creation and interpretation of law by providing a basis for legal arguments and strategies. Attorneys and legal researchers rely on case law to interpret statutes, understand judicial rulings, and develop persuasive legal arguments. They can analyse past cases to identify relevant precedents, extract key legal principles, and apply them to new situations. This process contributes to a dynamic and evolving legal landscape, where each judicial decision builds upon and refines the existing body of case law.
Writing a Law Case Review: A Step-by-Step Guide
You may want to see also
Explore related products
They are useful for legal research
Secondary sources are an excellent tool for legal research, providing a more complete understanding of the legal topic at hand. They explain, analyse, interpret, and discuss the law, giving context and insight into the primary sources that establish it. For example, legal treatises and hornbooks are secondary sources that provide an in-depth treatment of an area of law, often written by specialists in that field. They are a useful starting point for finding case law on a particular subject.
Law reviews and journals are another type of secondary source, offering articles that summarise legal topics and provide citations to other primary and secondary sources. These articles are an excellent way to expand legal research, providing a wealth of references to further reading and helping researchers to quickly get up to speed with unfamiliar areas of law.
Additionally, digests are multi-volume indexes of the law, organised by topic and "key number" classification systems. They provide a straightforward way to find relevant cases and statutes, with cases listed in reverse chronological order, from the highest to the lowest courts. This ensures that researchers can easily access the most relevant and authoritative cases on a particular topic.
Secondary sources also save researchers time and energy by pointing them towards the most pertinent primary sources. They can also provide an indication of the prevailing view on how courts interpret primary sources, and some are so authoritative that courts themselves rely on them in their rulings. For instance, Restatements of the Law are often cited by courts to explain legal issues, and Jury Instructions are widely relied upon by state and federal courts when submitting instructions to the jury.
Writing a Case Summary: A Step-by-Step Guide for Law Students
You may want to see also
Explore related products
They include books and articles
Secondary sources explain the law but do not establish binding law. They include books and articles written about the law. These books and articles are written by legal experts and practitioners, often in the form of treatises, journals, and reviews. They provide an in-depth analysis of a particular area of law, summarising legal doctrines and offering valuable insights and guidance.
Legal treatises and hornbooks are examples of law books that offer a comprehensive treatment of a specific area of law. They are usually written by specialists, such as practitioners or scholars with expertise in that legal field. These books can serve as a valuable starting point for understanding case law on a particular subject. The Nutshell series, for instance, focuses on specific legal subjects and is written in a user-friendly manner, making it accessible to those new to the field.
Law journals, also known as law reviews, are periodicals published by law schools and edited by law students. These journals contain articles written by legal academics, covering a diverse range of topics or focusing on specific areas of law. Articles in law reviews typically include summaries of legal topics and numerous citations to both secondary and primary legal sources, making them excellent tools for expanding legal research.
Additionally, books and articles can provide a digest or index of relevant cases organised by topic and "key number" classification systems. For example, West's Federal Digest includes a "Descriptive-Word Index" that helps users find authorities based on descriptive words associated with their legal concept of interest. This system allows for efficient research by providing access to relevant cases and citations.
By utilising these secondary sources, individuals can gain a deeper understanding of the law and its principles. They offer insights into how courts interpret primary sources and can even influence the creation and interpretation of laws.
Writing Case Law: A Step-by-Step Guide
You may want to see also
Explore related products
They are not binding law
While case law is a primary source, it is also considered a secondary source in some contexts. Legal materials fall into two categories: primary and secondary. Primary sources establish the law and include cases, statutes, regulations, treaties, and constitutions. Secondary sources explain the law but do not establish binding law. They include books and articles written about the law.
Case law refers to the reported decisions or "opinions" of courts, which interpret existing law based on specific facts. Judges use past decisions for guidance when ruling on new cases. The decisions of higher courts are typically binding on lower courts in the same jurisdiction when similar issues are involved. However, secondary sources, including case law reporters, are organised chronologically and can be used to understand the prevailing view on how courts interpret primary sources.
Secondary sources are valuable in legal research as they provide insights into recent court decisions and new statutes. They can help break down the meaning of new legal authorities and consider the potential implications of new rulings. For example, legal treatises and hornbooks are secondary sources that provide an in-depth treatment of an area of law, often written by specialists. The Nutshell series provides a user-friendly introduction to case law on a particular subject.
While secondary sources are influential, they are not binding law. They can influence the creation and interpretation of the law but are not determinative. Starting legal research with secondary sources can help to better understand the legal principles at issue and locate relevant primary sources.
Crafting Compelling Case Analysis: A Legal Writing Guide
You may want to see also
Frequently asked questions
Primary sources establish the law and include cases, statutes, regulations, treaties, and constitutions.
Secondary sources explain the law but do not establish binding law. They include books and articles written about the law.
Primary sources are the law itself. Secondary sources are about the law. They explain, analyze, interpret, discuss, and cite primary sources.
Secondary sources can be used to quickly understand an unfamiliar area of law. They can also point to the most relevant cases and statutes to review and rely on for the legal issue being researched.
