9 Finding and Using Secondary Sources
You likely encountered a few types of secondary sources in previous legal research and writing courses. In this chapter, you will review the main types of secondary sources and learn about some secondary sources that you might not have used previously.
Learning Goals:
After reading this chapter, you will be able to
- Provide background on what a secondary source is and why you use secondary sources.
- Discuss the different types of secondary sources.
- Use various strategies for searching for secondary sources and using them effectively.
What is a Secondary Source?
Legal information is divided into primary sources and secondary sources. Primary sources are the law from government entities: constitutions, statutes, administrative rules/regulations, and cases. Constitutions and statutes come from the legislature (legislative branch). Administrative agencies (executive branch) issue rules/regulations and administrative law judges issue administrative opinions and rulings. Courts (judicial branch) deliver court opinions, which we refer to as case law.
In contrast, secondary sources are sources written about the law. They explain, analyze, summarize, or discuss the law. They are usually written by law professors or attorneys.
Why Use a Secondary Source?
Sometimes a client will come to you with a question about an area of law unfamiliar to you. Secondary sources provide you with background information as well as refer to statutes and cases that will give you a starting point for further research. Even if you have some experience with the legal topic, a secondary source might make your research more efficient by summarizing some important legal rules and highlighting important statutes, cases, and administrative rules, giving you a quicker and easier entry point.
Librarians and legal research and writing professors often suggest starting your research with secondary sources; but you can use secondary sources at different points throughout your research process. You might find some statutes and cases, and then recognize that you need to read some secondary sources to put the law in a bigger context or investigate how experts have analyzed the body of law on your topic.
Types of Secondary Sources
The main types of secondary sources are encyclopedias, treatises and other books, law review and journal articles, American Law Reports, and practice materials. Other excellent places to find secondary source material are government and organizational websites, as well as blogs. With any source, you need to evaluate its credibility, currentness, and impact; however, when looking at organizational websites and blogs, you need also to inquire whether the organization or blog author has a particular bias.
Encyclopedias
What are legal encyclopedias?
Legal encyclopedias describe terms and concepts in relatively easy to digest entries. The commentary is more general, rather than detailed, so encyclopedias provide quick grounding in a legal concept. The main legal encyclopedias are American Jurisprudence (AmJur) and Corpus Juris Secundum (CJS). AmJur and CJS are not jurisdiction-specific but will often provide citations to cases or statutes from multiple jurisdictions, so you will need to do further research to find sources on the controlling law of your state or federal jurisdiction. Some states have their own legal encyclopedias that focus on the law of that state. Wex is a free legal dictionary and encyclopedia from the Legal Information Institute, Cornell Law School.
Where do you find legal encyclopedias?
Some law libraries might still have print volumes of encyclopedias. However, recently most libraries have stopped updating print encyclopedias or have removed them altogether. AmJur is available on Westlaw and Lexis and CJS is available on Westlaw. Wex is freely available by searching for the Legal Information Institute.
Treatises and other Books
There are many types of books that can aid in legal research. You will hear terms like treatise, monograph, looseleaf, practice guide, and desk book. To put it simply, they are all books, but they range in breadth and depth of treatment and format. You would choose one type of book over another depending on the question you are trying to answer, the amount of time you have, and the stage of representation or litigation.
What is a treatise?
A treatise is a book covering a legal topic in a comprehensive way. It provides analysis, legal rules, and illustrative examples. A treatise can be single or multi-volume, or serial in nature, and covers a general topic.When you are doing legal research, you probably will not have time to read a whole treatise on a legal topic. Treatises have tables of contents and indexes that you can use to find a specific issue or sub-topic relevant to your problem. For example, Restatements of the Law is considered a multivolume treatise.
What is a monograph?
A monograph is a singular volume that presents more specific treatment of a topic. It is a specialized, scholarly treatise. Like other treatises, they have tables of contents and indexes to help you target the specific area relevant to your problem.
Where do you find treatises and monographs?
Most law libraries have treatises and monographs in print and ebook form. Lexis, Westlaw, and Bloomberg also host collections of treatises. You can find some treatises on HeinOnline as well; some public and academic law libraries provide no-cost access to HeinOnline to the general public.
Practice Example:
Many subscription databases available through law libraries provide access to treatises, monographs and other books. However, you can also find books on freely available platforms as well. In this example, you will search for trademark resources using Oregon Bar Books and NOLO databases from the State of Oregon Law Library website.
The following video will demonstrate the research steps to find resources using the State of Oregon Law Library website.
What is a practice guide?
A practice guide explains how to practice in a particular area of law. Practice guides focus on succinct statements of legal principles and provide tools such as checklists and sample language for pleadings. Tables of Contents provide excellent organizational structure to help you analyze the necessary parts of a legal claim. Most practice guides are jurisdiction specific. One popular example of a practice guide is the collection of Oregon BarBooks. Some states, such as California, have many practice guides on a variety of topics.
Where do you find practice guides?
In Oregon, members of the Bar have access to Oregon BarBooks. Members of the public can access them through the State of Oregon Law Library. Law students usually have access though their school’s library website. Lexis, Westlaw, and Bloomberg also provide access to practice guides. Finally, many law libraries still have print copies of practice guides on the shelves.
Practice Materials
What are Practice Materials?
In addition to practice guides, a type of book discussed above, there are other practice materials: forms, model pleadings, jury verdicts, dockets, and court rules. Generally, practitioners consider any materials that provide “how-to” information to be practice materials. For example, an attorney might use a form to learn some basic information on how to file a complaint on a trademark issue. Or the attorney might look at dockets for trademark infringement cases to see examples of how trademark cases move through a court or what types of motions are typically filed.
Where do you find practice materials?
If you are looking for freely available practice materials, go to county, state and academic law libraries, which might provide access to some of their databases.
Commercial platforms such as Westlaw, Lexis, and Bloomberg have extensive collections of practice materials.
Westlaw
Westlaw has the following databases with practice-oriented materials:
Briefs: contains briefs from the U.S. Supreme Court (and selected Petitions for Writ of Certiorari, Courts of Appeals, Courts of Appeals for the Armed Forces, U.S. Tax Court and various state courts and the District of Columbia.
Dockets: Dockets are formal records noting all proceedings and filings in court cases. The Westlaw docket database contains docket information on cases filed in state courts, U.S. District Courts, U.S. Courts of Appeals, U.S. Bankruptcy Courts and the U.S. Supreme Court. Some administrative agency dockets are also provided.
Expert Materials: This database contains selected reports, affidavits, depositions, and trial transcripts from expert witnesses for state and federal courts.
Forms: This database contains text forms, fillable PDF forms, clauses, and checklists from national and state form sets, including legal and business, transactional, litigation, and pleading and practice forms.
Jury Verdicts and Settlements: You can search by topic or jurisdiction to find information on jury verdicts, settlements, and arbitrations in state and federal court cases.
Trial Court Documents: Search by type of document (motions, pleadings, jury instruction filings, exhibits, or interrogatories), jurisdiction, or topic to find documents filed in state or federal courts.
Trial Transcripts and Oral Arguments: Transcripts of trials and oral arguments from selected state and federal courts. Transcripts of oral arguments in the U.S. Supreme Court are official transcripts; all others are unofficial.
Sample Agreements: This database provides access to numerous executed business agreements including language, clauses, and provisions drafted by law firms and in-house counsel.
The Practical Law Database provides several types of resources (practice notes, documents, clauses, checklists, toolkits, etc.) in various practice areas such as Antitrust, Arbitration, Bankruptcy, Capital Markets and Corporate Governance, Commercial Transactions, Mergers and Acquisitions, Data Privacy and Cybersecurity, Employee Benefits, Finance, Government Practice (Federal, State and Local), Health Care, Intellectual Property and Technology, Labor and Employment, Litigation, Real Estate, and Trusts and Estates.
Lexis
Lexis has the following databases containing practice-oriented materials:
Briefs, Pleadings & Motions: In addition to briefs from state and federal courts, this database includes federal and state pleadings (complaints, petitions, answers, declarations, and memoranda of points and authorities), motions, and other documents.
Dockets (Courtlink): This database allows you to search for dockets and documents with keywords, docket numbers, litigant names, attorney or judge information, case type, litigation area, and other fields.
Expert Witness Materials: This database provides access to expert witness challenges, resumes and CVs, summaries, and testimonies and reports, searching by content type, jurisdiction, or practice area.
Jury Instructions: Search for federal and state jury instructions by jurisdiction or practice area.
Jury Verdicts & Settlements: This database contains jury verdict and settlement information by jurisdiction or practice area.
Sample Forms: Search for forms by jurisdiction or practice area.
Bloomberg Law
Bloomberg Law is a practice-oriented platform. In their practice centers for various topics, you can find toolkits, forms, charts, checklists, practical guidance, clauses, and documents. Bloomberg also provides access to federal and some state dockets.
American Law Reports
What are American Law Reports?
American Law Reports (ALR) is a series containing articles called annotations. The annotations cover narrow legal issues concisely, and provide a user-friendly organizational structure. Annotations cite to relevant primary sources from multiple jurisdictions.
Where do you find American Law Reports?
Westlaw and Lexis provide access to American Law Reports.
Scholarly Journal Articles
What is a law review or law journal article?
Authored by judges, practitioners, and law professors, law review and law journal articles are deep, detailed discussions on narrow legal issues; they often review the historical development of legal principles and propose changes to the law. Law reviews and journals also publish Notes and Comments, authored by law students. The Notes and Comments focus on a recent court decision or discuss a broader issue of law.
Law reviews and journals are published by student editorial boards. Many journals cover a broad range of topics, but journals on specialized topics are available. For example, a law school might have journals focusing on international law, environmental law, women and the law, or criminal justice.
Where do you find law review and journal articles?
You can find free access to many journal articles on Google Scholar. In addition, state and county law libraries often provide access to HeinOnline, which has an extensive law journal database. Westlaw, Lexis, and Bloomberg also provide access to law review and journal databases. Increasingly, law schools provide free access to their journals through their websites or online repositories.
Practice Example:
In this example, you will search Google Scholar to find a law review or journal article on trademark infringement in the context of beer names and breweries.
The following video will demonstrate how to find and access articles using Google Scholar.
Government and Organization Websites
In the last decade, governmental entities such as administrative agencies have created websites containing extensive amounts of helpful information. In addition to linking to primary sources, government agencies provide reports, FAQs, forms, tools, and other publications that help you find and understand legal principles within their jurisdiction. Non-governmental organizations have similar types of information available on their websites. With this wealth of information available for free, you will often find helpful secondary sources just by using a Google type of search.
On Google, you can refine your searches to be more targeted and efficient by clicking on the “settings” link in the lower right corner of the screen and using the options for Advanced Search and working with “site or domain.” For example, if you just want government sites, you can type .gov into the site or domain search box and then put other search terms in the boxes at the top of the Advanced Search page. Or, if you want to search a particular site, you can type that site name and then add search terms. This type of searching will allow you to eliminate irrelevant results and save time and energy.
Practice Example:
In this example, you will look for a secondary source on the issue of trademarks for beer and breweries on a government website using a google advanced search.
The following video will demonstrate using a google advanced search to find a secondary source on a government website.
Blogs
Blogs on a variety of legal topics also are an easily accessible way to start your research. Be attentive to the credentials of the author and how current the blog is. Blogs are a great way to read about current trends in the law, breaking cases, and background information; but always verify the information is correct with your own research into primary sources.
suggested activity
One group of students should use only free sources and one group should use only subscription platforms to find secondary sources on one aspect of the client’s problem (i.e. the trademark issue or Oregon brewery licenses) and then compare and contrast results. This activity can be done as an online discussion board or as in-class group work and class discussion.
Student-drafted Discussion and Reflection Questions
- What is your level of confidence that you have found the best secondary source for your research problem?
- What types of secondary sources mentioned in this chapter have you used before, and which sources have you not used before?
Contribute a discussion or reflection question to this section