Keith Mack
Case law from a different jurisdiction can be considered secondary authority. Secondary authority is not the law but helps explain and analyse the law and leads to primary authority. Secondary authority is always persuasive and can be in the form of legal dictionaries, encyclopaedias, journals, books, and treatises. It is a valuable resource for legal research. Case law refers to the reported decisions of courts, which interpret existing law based on a specific set of facts. Judges often look to past decisions for guidance. The decisions of higher courts are binding on lower courts in the same jurisdiction. However, when it comes to different jurisdictions, the weight of authority depends on the level of the court and the jurisdiction where the dispute is decided. For example, a South Carolina court may be persuaded by a decision from a Georgia court, but the Georgia case law is not binding authority for South Carolina.
| Characteristics | Values |
|---|---|
| Definition | Secondary authority refers to material that is not the law but that which leads you to the law or helps to explain the law |
| Examples | Legal encyclopaedias, jurisprudences, American Law Reports (ALR), legal dictionaries, journals, books, treatises, etc. |
| Nature | Secondary authority is always persuasive |
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What You'll Learn
Case law is primary authority
When we refer to "authority" or "primary authority", we mean "the law". This includes constitutional or statutory provisions, administrative regulations, and court opinions. Case law is, therefore, a form of primary authority.
Primary authority is the law and includes constitutions, statutes and ordinances, rules and regulations, and case law. These authorities form the rules that courts follow. Primary authority is divided into two types: mandatory and persuasive. For authority to be mandatory, the court in your jurisdiction must follow the legal rule(s) set forth in the authority you are relying on for your legal situation. Persuasive authority is everything else. Courts are bound by mandatory authority but not by persuasive authority.
Secondary authority, on the other hand, refers to material that is not the law but that which leads you to the law or helps explain the law. Secondary authority is always persuasive and never binding. It includes legal dictionaries, encyclopaedias, journals, and books and treatises. These sources are valuable to the research process because they explain and analyse the law and help identify relevant primary authorities.
In some cases, a court in one jurisdiction may be persuaded by a decision from another jurisdiction. For example, a South Carolina court may be persuaded by a Georgia case. The Georgia case would be considered primary authority (as it is the law in Georgia) but would only be persuasive authority for the South Carolina court.
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Secondary authority is persuasive
Secondary authority is always persuasive. It refers to material that is not the law but helps explain the law or leads to it. It includes legal encyclopaedias, jurisprudences, and American Law Reports (ALR), among others. Secondary authority is a valuable resource in the research process as it provides explanations and analysis of the law and helps identify relevant primary authorities.
Primary authority, or the law, includes constitutions, statutes, ordinances, rules, regulations, and case law. These form the rules that courts follow. Secondary authority, on the other hand, provides commentary on the law and includes treatises, restatements, journal articles, ALR annotations, and hornbooks. While mandatory authority binds a court, persuasive authority does not. Courts may follow persuasive authority when they find it convincing.
Restatements, a type of secondary authority, attempt to gather and synthesise case law on a topic, organise it, and present the "rules" distilled from the cases. These "rules" are the American Law Institute's interpretation of common law issues. Restatements are considered more persuasive than other non-primary authorities.
Case law from a higher court within the same jurisdiction is typically binding on lower courts. However, when it comes to case law from a different jurisdiction, it is considered secondary authority. For example, a South Carolina court may find persuasive authority in a decision from a Georgia court. In this case, the Georgia decision is primary authority in its own jurisdiction but only holds persuasive authority in South Carolina.
In summary, secondary authority is always persuasive as it provides valuable commentary, analysis, and explanations of the law without being binding. Case law from a different jurisdiction falls under secondary authority and can influence courts in their decision-making when there is no primary authority to rely on.
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Primary authority is mandatory in some cases
The term "authority" in a legal context refers to primary authority, which is the law, and secondary authority, which is commentary that explains the law. Primary authority includes constitutions, statutes, ordinances, rules, regulations, and case law. Secondary authority includes legal dictionaries, encyclopaedias, journals, books, and treatises.
In the US legal system, federal courts and state courts have jurisdiction over different matters, and small courts, such as probate or traffic court, have limited jurisdiction. Generally, the decisions of higher courts are binding on lower courts in the same jurisdiction when similar issues are raised. For example, the decisions of appellate courts and courts of last resort, such as the Supreme Court, are binding on trial courts.
Secondary authority is always persuasive. It is a valuable resource for legal research because it explains and analyzes the law and helps identify relevant primary authorities. However, it should not be relied upon unless there is absolutely no primary authority that supports your position.
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Secondary authority sources include legal dictionaries
Primary authority refers to the law, which includes constitutions, statutes, ordinances, rules, regulations, and case law. These authorities form the rules that courts follow. Secondary authority, on the other hand, is not the law but includes sources that lead to or help explain the law, such as legal dictionaries, encyclopaedias, journals, books, and treatises. While primary authority is mandatory and binding, secondary authority is always persuasive. It is not mandatory to follow secondary authority, but it can be highly persuasive and is often used to bolster an argument or aid in understanding the law.
Legal dictionaries, such as Black's Law Dictionary, are a crucial component of secondary authority sources. They provide basic definitions of legal terms and can be cited in legal research. For example, when citing Black's Law Dictionary in print, you would simply need to provide the relevant page number. However, citing the dictionary electronically would require additional information, such as the database name and publication year. Another example of a legal dictionary is Words and Phrases, which offers definitions from multiple jurisdictions. These dictionaries are valuable tools for legal researchers as they help decipher the unique vocabulary of the legal field.
Legal encyclopaedias are another important secondary authority source. Unlike regular encyclopaedias, legal encyclopaedias are typically authored by publishing company employees rather than legal scholars. They provide an overview of various legal topics, often arranged alphabetically, and include citations to relevant cases, statutes, and regulations. Examples of widely used legal encyclopaedias include American Jurisprudence 2d (Am Jur 2d) and Corpus Juris Secundum (CJS). Am Jur 2d offers citations to select cases, while CJS aims for comprehensiveness and provides more detailed articles.
Secondary authority sources also encompass treatises, which are in-depth discussions of legal topics often written by respected authors. Treatises can take the form of hornbooks or class texts and are valuable for their comprehensive treatment of specific areas of law. Restatements are a type of treatise that attempts to synthesise case law on a topic and present distilled "rules". These rules are accompanied by comments, illustrations, and appendix volumes containing case annotations. Legal periodicals, such as law journals and articles, also fall under secondary authority. They provide commentary and analysis of legal topics and can be located through legal periodical indexes.
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Secondary authority helps identify primary authority
In law, authorities are divided into two types: primary and secondary. Primary authority is the law itself and includes constitutions, statutes, published opinions, regulations, treaties, and court rules. Secondary authority, on the other hand, is not the law but instead provides commentary on the law and helps explain and analyse it. Examples of secondary authority include legal dictionaries, encyclopaedias, journals, and books and treatises.
Secondary authority is always persuasive, meaning that a court may follow it when reaching its decision if it is persuaded to do so. However, it is important to note that secondary authority is not binding on a court, unlike mandatory authority, which is primary authority that a court must follow.
Secondary authority plays a crucial role in legal research by helping to identify relevant primary authorities. For example, legal encyclopaedias, such as American Jurisprudence and Corpus Juris Secundum, can be used at the beginning of a research project to provide an overview of the law and lead researchers to relevant cases, annotations, and legal topics. Similarly, legal periodicals and digests can aid in finding cases on specific topics and understanding the judicially defined terms used in those cases.
Additionally, secondary authority can provide valuable context and analysis of the law. Treatises, restatements, and hornbooks attempt to synthesise and organise case law on a topic, presenting the "rules" or "black letter law" distilled from the cases. They often include comments, illustrations, and exceptions to help explain the rules and provide a comprehensive understanding of the law.
In summary, secondary authority is a valuable tool for legal researchers as it provides commentary on the law, helps identify relevant primary authorities, and offers additional context and analysis to enhance understanding of the legal principles.
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Frequently asked questions
Secondary authority is material that is not the law but helps to explain the law or leads you to the law. Secondary authority is always persuasive.
Examples of secondary authority include legal dictionaries, encyclopaedias, journals, books, and treatises.
Case law refers to the reported decisions or "opinions" of courts, which interpret existing law based on a specific set of facts.
Mandatory authority is primary authority that binds a court. The court must follow mandatory authority when reaching its decision. Persuasive authority does not bind a court, but a court may follow it when reaching its decision if it is persuaded to do so.
Case law from a different jurisdiction can be considered persuasive authority. While it is not binding, it can still be influential and help guide the decision-making process.
