Secondary Sources Essay
Because the law is so varied, there are many different resources available to help locate the law, each with a specific use and specific limitations. The major types of legal research resources are primary sources of law and secondary sources of law. Primary sources of law are the actual law itself — constitutions, statutes, administrative regulations, ordinances, and court opinions. Anything that creates the law is a primary source of law. All legal research should rely on primary sources. By contrast, secondary sources of law provide summaries and interpretations of the law. They are the result of what someone thinks the law is, not the law itself. Secondary sources are used to locate the law and to explain the law. Secondary sources are useful tools for finding the law, but they should never be relied on as stating the law.
There are three main categories of primary sources of the law. They are statutory law, administrative regulations, and case law.
Statutory law is any law enacted by a legislature and includes constitutions. It is also called enacted law. Statutory law is sometime contrasted with written opinions issued by the courts, called judge-made law (or common law). Statutory law can fill a void left by the common law, supplement the common law, or replace the common law. Even though statutes are intended to be available to the public, locating the appropriate statutory law can be surprisingly difficult. There are several sources for locating statutory law; which of these sources you use will depend on the nature of the client’s problem. If the client’s problem involves the application of a new law or a recent amendment of an old law, your legal research should begin with the most recent version of the statute. In most states, the earliest version of an effective statute is the slip law. The slip law is the version of the law presented to the executive branch of government.
In the federal system, each slip law is assigned a unique number known as a public law number. In most states, the slip law number is simply the number the bill was given as it made its way through the legislature. Federal public laws are printed in the United States Code Service. State slip laws are generally available through legislative printing offices. There are bound volumes of slip laws called session laws; compilations of slip laws in the order they were passed by the legislature. Each volume of session laws represents the work of one session of the legislature and will cover a myriad of topics. Many compilations of session laws use underlines and strikethroughs to show the additions and deletions in amended statutes. Session laws are the basis for the publication of official statutory codes.
Because session laws are not organized in a topical fashion, using them for research is difficult. To make locating statutes easier, the session laws are organized, or codified, for publication. A codified statute is assigned a number that follows a topical organization. While each state uses a different topical organization, the structure of most state codes follow a variation of the title (topic), chapter (sub-topic), and individual statute hierarchy. The government publishes official statutory codes. Typically, these official codes contain only the text of the statutes and the history of the statute as reflected in the session laws. In the event of a discrepancy between the official code and any other version of the statute, the official code controls. The official statutory code of the federal government is the United States Code.
Administrative regulations are forms of law promulgated by administrative agencies. If the legislature has enabled the agency to make rules addressing a specific topic, the pronouncements of the agency have the force of law. Administrative law is found in two places: the statutes enacted by the legislature and the rules and regulations of the agency itself. The legal researcher must consult both sources. There are two main statutes that govern the effect of an administrative rule or regulation. Most states and the federal government have an Administrative Procedures Act. This statute applies to all administrative agencies and sets forth the process the agency must follow in promulgating new rules and regulations. For each individual
agency there is a specific statute defining the purpose and authority of the agency. This is known as the enabling legislation. Some agencies require little in the way of specific rules and regulations to do their work.
Other agencies have extensive sets of rules and regulations covering many topics within their authority. In all cases, these rules and regulations are usually found in an administrative code that contains all the rules and regulations of the agencies created in that jurisdiction. In the federal government, this administrative code is called the Code of Federal Regulations. It contains administrative regulations from the Department of Labor, the Department of Health and Human Services, and many others. The rules are organized according to the statutory title that created the agency. For example, the enabling legislation for the Occupational Safety and Health Administration (OSHA) is contained in Title 29 of the United States Code, so all OSHA rules are found in Volume 29 of the Code of Federal Regulations. State compilations have many different forms of organization.
Case law is the record of the opinions of judges in deciding cases. Each jurisdiction has its own set of case law. The decisions of trial-level courts are seldom reported because they are not binding on any other court. Nevertheless, trial court opinions are sometimes useful where no other authority exists. For this reason, the federal court system and some state court systems make certain that written trial court opinions are available in electronic format. Use caution when referring to these decisions, however, as they are the least permanent of all court decisions. The vast majority of reported decisions are written opinions from the appellate courts of the jurisdiction. Most states have one or two levels of appellate court — a state supreme court and an intermediate appellate court. In some states, such as New York and California, there are additional appellate levels. Each court has a specific abbreviation that identifies the court’s position in the judicial hierarchy. These abbreviations are part of the citation to the opinion.
Constitutions, statutes, and case law are primary materials. These items comprise “the law.” All other materials are secondary legal sources. Secondary sources contain summaries of the law and commentaries on the law. Although they are not the law itself, they are valuable resources to the legal researcher.
An article in an encyclopedia can be useful for quick orientation to a subject and for specific items of information. If it includes bibliography, it can be useful as a guide to general source of information. Legal encyclopaedias are summaries of general legal principles. The publishers of legal encyclopaedias organize the law by topics and provide an outline of the law on that topic with references to major case opinions and statutes explaining the topic. Legal encyclopaedias summarize the law for one or more jurisdictions. Like regular encyclopaedia, legal encyclopaedia try to cover all or most topics to at least some degree and provide useful background information. They contain many references to both relevant statutes and cases. As a result of their broad coverage, however, they are not able to go into great deal of depth with regard to each topic, which is why you probably want to consult other types of secondary sources as well.
But there are some encyclopedias which go into great detail. Halsbury’s Law of England is the most important set of Encyclopedia which gives details and upto date of the law on a particular subject. Legal encyclopedias are organised alphabetically by topic. Each one however also typically contains an index at the end of the set, to help you pinpoint which topical chapters to consult. The major legal encyclopedias are American Jurisprudence (Am. Jur.) and Corpus Juris Secundum (C.J.S.). Both of these encyclopedias are national in scope. Some legal publishers also offer state-specific legal encyclopedias that summarize legal principles in that state. Legal encyclopedias provide an overview of the law that is often a necessary starting point for legal research.
They are secondary sources that help researchers find relevant case law. A digest entry a brief summary of the case and citations to where the case itself has been reported or its unreported citation. When an appellate court decides a case, its opinion might address several legal principles. For example, an appeal from a criminal conviction can raise issues of interpretation of a statute, admissibility of character evidence, and the constitutionality of a confession. Not all of these issues are relevant to the legal researcher, so the publishers of legal digests provide indexes that reference the opinion under each topic discussed by the court. These indexes are organized by legal topic and include short summaries of the portion of the opinion that discusses each topic. The compilation of these indexes and summaries is called a digest. A digest allows the legal researcher to locate topical case law quickly and easily.
The most popular digest system is published by West and utilizes an index system developed by West called the key number system. Under this system, specific areas of the law are divided into topics (key numbers) and subtopics. The summaries contained in the West digest system also appear as head notes, or topical summaries. Because the head notes are not a part of the official court opinion, they are not primary law, but are an indispensable aid in locating primary law on a specific topic. But as a matter of caution, one should never cite to a case that you have not read in full. A digest is a case finding tool and should not be relied upon to interpret upon cases. Digest editors can, and do make mistakes and small excerpts from cases are often misleading about the actual statement of law found in a case.
Periodicals are publications which are issued at regular intervals, such as journals, magazines and newspapers. They are also often referred to as serials. Periodicals usually consist of a collection of articles, which may range from a single page story in a magazine to a 40 page study in a scholarly journal.
Advantages of using a periodical:
* Because they are published frequently, they are best sources for current information. * Current events are usually discussed in periodicals long before they become the subject of a book. * Periodicals often contain information on the latest trends, products, research and theory. * Periodicals are the best source for very specialised information. * Due to shorter length of periodical articles, more topics may be covered within one volume of a periodical than in a book.
Legal self help books:
If a researcher does not have any legal background but need to research the law concerning a particular matter, a legal self help book may be a good place to begin research. These books are designed to cover common topics of legal matters and provide basic legal framework for the topics covered. Sometimes, specific primary law sources are referenced in these sources and sample forms are provided.
They are narratives of the facts, legal discussions and judgments of individual cases. Report series are classified as: * Official Reports: they are authorised by the court whose decisions they report. * Semi- official Reports: they are published by commercial law publishers but have a measure of authority nonetheless through custom and practice. * Unofficial Reports: they are unauthorised publications by private organisations.
Not all the cases are reported. The cases published as law reports are those deemed to be of significant legal interest i.e. they are cases which create a new precedent, or which modify or clarify an existing principle of law.
Why are law reports important?
Our legal system is heavily dependent on the doctrine of precedent. This determines that the court, with certain limitations, are bound to follow earlier decisions. Thus in decided cases, principles of law laid down by higher courts must be followed by other courts in similar cases. A system of precedent can only operate where there is well established system of law reporting. Law reports are therefore extremely important for they enable decisions to be accessed by future courts.
Law journals play a unique role. The writers of articles are well versed in law. In their articles, they comment and analyze the legislations, and judicial opinions. They also freely and frankly state where the legislation or the judicial opinion failed. They also observe established legal norms or rules and keep pace with the socio-economic urges. In some controversial issue, even help to initiate a public debate. This inspires knowledgeable people to delve deep into and further investigate. The writers also highlight and appreciate where the legislation or the judicial opinion turned a new page. They also help initiate some legislative measure or decide a legal issue and therefore laying down a new doctrine.
In addition to the standard unabridged dictionaries of the English language, there are dictionaries that serves special purposes or interests. There are many separate dictionaries of legal terms and phrases. The Law Lexicon of P. Ramanatha Aiyar, published by Wadhwa, Nagpur is one such dictionaries.
Newspapers are chroniclers of the passing events. All the facts are recorded in the newspaper. The journalist might have witnessed it himself or might hav interviewed a person who has actually witnessed some fact. So from that perspective, newspapers are primary sources. But newspaper is not only a chronicler, but also represents the view of an editor. But whether an opinion of an editor can be taken as source of legal research is questionable. For this, editor’s other works and his history has to be seen, whether those were realistic and reliable. If yes, then only you can proceed with the research material. Some opine that newspaper always present biased and distorted view. In that case, relying on newspapers wholly as a source of research is not right. Another point is: whether newspaper can be used to determine factual validity if they are hopelessly biased and tainted or if they can accurately represent public opinion? As per Swedish bibliographer Folke Dahl described “ the publications were said to contain mostly lies, false reports and the like, while their editors and publishers were termed newmongers, news-scribllers or gossip writers.”
If a historian wants to skim through any opinion people held regarding any event in the past, he will see the newspaper. But will he be able to guage the true opinion because their perception might have filtered through press, which might have changed the historical outcome. Secondly, newspaper used as factual sources have several limitations. Under the pressure of time, limited access to information and available space, a truncated view of society may be presented by the periodical press. But at the same time, they become the lingua franca of society, the most popular index of measuring we have of measuring public attitude. Newspapers are a big business and tend to be conservative, reflecting the economic and political interests of their owners.
I would like to conclude by saying that these sources no doubt provide the base, on which structure has to be built by the researcher by way of analyzing and proper reasoning. Research will not be research in real sense, in case, a researcher just collects information from different sources and put it at one place. There will be no innovation or new idea. Hence it is required that researcher should always aim for innovations and new ideas and contribute something to the well of scholarly writings.
Subject: Common law,
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 18 October 2016
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