If I have seen farther, it is by standing on the shoulders of giants. – Sir Isaac Newton
In working through this chapter, students should strive to be able to:
Describe various types of secondary sources.
Assess when to use a general secondary source vs. an in-depth, topical secondary source.
Find an appropriate secondary source for any discrete legal issue.
Use secondary sources in print or online to research a specific legal issue.
This text has so far discussed primary legal authorities and the methods for locating them. Now we turn our attention to secondary authorities, also called secondary sources, which are the sources researchers often use to begin their research. Legal secondary sources are texts that provide commentary and analysis of the law for the benefit of the reader. Secondary sources come in a variety of forms; they can be general or detailed, cover a specific jurisdiction, and they are written for a wide range of audiences. Different secondary sources may be employed at different stages of the research process; the choice of secondary source may also rest on the researcher’s prior knowledge of the topic. This chapter will describe the most common types of secondary sources the researcher is likely to encounter, when they should (and should not) be used, and a variety of methods for locating them.
Law students and aspiring legal researches will likely encounter a broad range of secondary sources. In the following sections, we briefly describe some of the common types of secondary sources used by legal researchers. Figure 6.2.1 provides a quick-glance summary of the strengths and weaknesses of each type of secondary source described.
|Secondary Source||Advantages & Disadvantages|
|Legal encyclopedias||More breadth and less depth; a very general introduction to many legal topics. Low citability.|
|Practice Series & Materials||Breadth and depth vary by source, as does the amount of commentary. Citability thus varies; typically low. Useful in jurisdiction-specific research.|
|American Law Reports (ALRs)||More breadth and less depth; annotations contain summary but not analysis. Useful to start research on narrow topics and for jurisdictional comparisons. Low citability.|
|Restatements||Highly credible and thus highly citable. In-depth coverage on areas of traditional common law.|
|Model Codes & Uniform Acts||Focus on areas governed by statutory law and provide extensive annotations to relevant caselaw.|
|Treatises||Treats a subject in depth but breadth varies. Citability sometimes high but varies depending on the reputation of the treatise.|
|Form books||Useful for identifying the pieces necessary to a type of legal document.|
|Law Review & Journal Articles.||In-depth treatment on a narrow area of law; not updated once published. Quality and thus citability varies.|
188.8.131.52 Legal Encyclopedias
Legal encyclopedias are the most general of secondary sources. They have more breadth than depth and so can provide an introduction to a wide range of legal topics. If the researcher is unfamiliar with an area of law and needs a list of the major primary authorities in the area as a starting point for further research on the issue, legal encyclopedias are a solid place for him to begin his research. They are, as one would expect from the term “encyclopedia,” organized alphabetically by topic. American Jurisprudence 2d (Am. Jur. 2d) and the Corpus Juris Secundum (C.J.S.) are two of the most widely known legal encyclopedias. Some states have jurisdiction-specific legal encyclopedias, such as Ohio Jurisprudence 3d.
184.108.40.206 Practice Series & Practice Materials
Practice series resemble legal encyclopedias in that they cover a variety of legal topics, though perhaps not as many as a legal encyclopedia, and they tend to be jurisdiction-specific. They are usually written by practitioners or scholars specializing in that jurisdiction and may contain descriptions of the current state of the law, some analysis of the law, and possibly forms relating to a particular topic. They tend to be organized by topic and can be one volume or many.
Other practice materials may be form books, discussed further in section 220.127.116.11, or process-oriented guides as to how litigation on a topic normally proceeds. Materials in the latter category may explain how litigation on a topic proceeds and the court filings and documentation typically seen in such cases.
Practice series and other practice-oriented materials can sometimes resemble treatises in their depth of coverage on specific topics. In fact, whether an item should be deemed a “treatise” or a “practice material” can be a gray area, and these sources are often found using similar methods that will be discussed later in this chapter.
18.104.22.168 American Law Reports (ALRs)
The American Law Reports is a set of hundreds of volumes which are filled with articles called “annotations.” ALRs provide an odd combination of breadth and depth; the number of topics covered is vast but those topics are much more specific than those in an encyclopedia. The annotations summarize caselaw on those narrow topics across jurisdictions; the function is more of a report on the current state of the law rather than an analysis of the law as one would find in a topical treatise. Each annotation contains a table of the relevant primary authorities described in the annotation organized by jurisdiction which can be a quick reference for finding primary authorities on that topic across jurisdictions. There are six series of the ALRs covering state law, the most recent being the ALR 6th. The ALR Federal covers federal topics and is on its second series.
22.214.171.124 Restatements & Principles of Law
Restatements are publications by the American Law Institute (ALI) that clarify and organize the existing state of caselaw on a given topic, or, in other words, restate the law. The restatements contain analysis on an area of law, summarize and refer to caselaw across jurisdictions, and may offer suggestions on how the legal system could clarify an area of law going forward.
Because the ALI is composed of a large number of legal scholars and practitioners who are the experts in their fields, the restatements are generally considered to be among the most persuasive of the secondary sources of law. In fact, they are often cited by judicial opinions, particularly when there is no binding authority on point.
Many of the restatements are on their third series and are published by topic. Some of the more well-known restatements are those covering the laws of agency, contracts, property, torts, trusts, and unfair competition. A complete list of topics may be found on the ALI website.
The ALI also publishes recommendations on areas of the law that need to be updated; these publications are called “Principles” and cover a wide variety of legal topics. These can be useful to a practitioner looking for guidance on how to present to the court on an area of unsettled or outdated law.
126.96.36.199 Model Codes & Uniform Acts
The ALI and the Uniform Law Commission both publish model codes and uniform acts to advocate standards or to improve organization in certain areas of the law. Just as the name implies, these publications are written in the form of model statutes that jurisdictions can adopt in part or whole into their own statutory codes. Examples that are familiar to first year law students are the Uniform Commercial Code and the Model Penal Code; a full listing can be seen on the Uniform Law Commission website and the ALI website. These publications contain annotations detailing how these model statutes have been adopted and implemented in various jurisdictions and thus can be a rich source of primary authority for a researcher.
Treatises are comprehensive texts on a narrow legal subject. They generally provide much more discussion and analysis of the legal topic than a legal encyclopedia or ALR annotation while also leading the researcher to primary authorities through references and citations. They may or may not be jurisdiction-specific and can vary in length from one to dozens of volumes.
Treatises are often named after their authors, e.g., Nimmer on Copyright, Farnsworth on Contracts. Some treatises are highly reputable in a given field, but the quality can run the gamut. Consulting a subject-specific research guide or a research expert may be the quickest method to locate the most credible title for a specific legal topic.
While each legal problem is distinct and each client unique, often the output of legal practice takes standardized forms. For instance, partnership agreements, while differing in the details, are generally structured in the same way. On the litigation side, while motions will employ unique arguments depending on the circumstances, the motions themselves will follow a standard format. Thus, one of the more useful types of secondary source in practice are form books, which publish blank templates or forms that lawyers can use in crafting their own legal documents. Usually, some explanatory text, similar to what you would see in a treatise, accompanies the templates.
Form books may be either jurisdiction specific or neutral; they may also be topical specific or cover a wide variety of subjects. West’s Legal Forms is an example of a general, jurisdiction-neutral form set. Published sets of pattern jury instructions, on the other hand, are topically specific and are often published for specific jurisdictions.
188.8.131.52 Law Reviews & Journals
Law reviews and journals contain scholarly articles primarily written by law professors on various specialized areas of law. Journals are published periodically and may contain articles on a particular subject area (e.g. Harvard Journal on Racial and Ethnic Justice) or articles in a wide variety of subjects (e.g. Harvard Law Review). Individual articles, however, usually address a very narrow area of the law. Furthermore, they tend to focus on underdeveloped or rarely-visited areas of the law and thus often contain information not found elsewhere. For this reason, they can be a rich resource for identifying not only relevant primary authority on that narrow topic but also secondary authorities on point. For the same reason, they are occasionally cited as persuasive authority by judicial opinions.
As indicated above, different secondary sources are employed for different research scenarios. Typically the researcher will use a secondary source to educate himself on an unfamiliar area of law, unfamiliar jurisdiction, or as a method to quickly identify relevant primary authorities on a given topic. Sections 184.108.40.206 and 220.127.116.11 address these uses in more detail.
While secondary sources are extremely useful tools for the research process, the researcher will not ordinarily cite to them in formal memorandums or court documents. He should never rely on a secondary source’s analysis of a primary authority; he must always review the primary authorities and conduct his own analysis relative to the specific facts of the legal issue that he is researching. Additionally, some areas of the law change rapidly and secondary sources vary widely in their currentness; a researcher will always need to perform additional research to make sure he is working with the most recent primary authorities on the issue. There are, however, exceptions to every rule, and section 18.104.22.168 describes scenarios in which citing to secondary authorities may be appropriate.
A researcher may need to consult a secondary resource for an overview of an unfamiliar area of law, of an unfamiliar jurisdiction, or of an overdeveloped area of law.
When researching an unfamiliar area of law or jurisdiction, a secondary source will give the researcher a quick overview of the state of the law in a specific legal area or in a specific jurisdiction. For an unfamiliar area of law, a general resource such as a legal encyclopedia may be the best place to start; once the researcher has a basic introduction, he may move on to a treatise or practice guide. A jurisdiction-specific legal encyclopedia would be beneficial for the researcher working with the law in a state in which he does not typically practice. A jurisdiction-specific practice series may be beneficial both for gaining an understanding of the topic in the researcher’s home jurisdiction, or he may want to identify a practice series in a new jurisdiction to see how it differs from his.
When researching in an overdeveloped area of the law, the researcher may find that he is overwhelmed by the number of primary authorities available on a particular topic. Separating the most relevant authorities from the multitude can be a time-consuming process, but a topic-specific secondary source may give the researcher a head start. A treatise on the topic will highlight the most important primary authorities in a given area, saving the researcher the time of identifying them himself.
In any of the above scenarios, the secondary source will also yield another important resource: relevant terminology to the topic. A different jurisdiction may use legal phrases to which the researcher is unaccustomed; an unfamiliar or overdeveloped area of law may have sub-topics or concepts previously unknown to him. The secondary materials will help the researcher grasp the appropriate terminology and concepts. Armed with the appropriate vocabulary, he can then pursue primary authorities using the methods described in earlier chapters.
One of the most useful features of secondary sources is that they direct researchers to primary authorities, and sometimes other secondary authorities, on the topic. An ALR article may summarize cases on a narrow topic across jurisdictions; a treatise will not only summarize the cases but provide detailed analysis of opinions on a particular legal issue; a jurisdiction-specific practice series will highlight the critical cases on the topic in that state. For underdeveloped areas of law, a scholarly article on point can direct the researcher to a wealth of excellent materials. That scholar has likely performed months, if not years, of research, identified the most relevant primary authorities, and consulted the most authoritative secondary sources on the topic.
There are scenarios in which it is appropriate to cite to persuasive authority in your legal writing. Typically this occurs in areas of law that are either underdeveloped or overdeveloped.
When an area of law is overdeveloped, the amount of relevant primary authority to be found can be staggering. It may be difficult to narrow down the appropriate cases to cite to support a particular legal proposition. In such a scenario, it may be prudent to cite a Restatement instead of hundreds of cases that have developed a particular proposition. If that Restatement is cited in precedent from your jurisdiction, it is an indication that it may be appropriate to use it for the same purpose. Some treatises are held in similarly high regard and used in a similar manner.
Citing to secondary authority may also be appropriate in the opposite scenario: when an area of law is new or underdeveloped in a particular jurisdiction. Persuasive authorities, including secondary sources, are used more often when primary authorities on point are scarce. If your legal problem is a case of first impression in a jurisdiction, i.e. there are no precedents, a suggestion from a law review article or a restatement on how to resolve the issue may be suitable.
Now let us turn to how legal researchers find and utilize secondary sources.
Because secondary sources vary widely in type and format, and often have similar or nondescript titles, finding an appropriate source for the legal issue at hand can be challenging. Ideally the researcher will want to start with a resource that identifies secondary sources by topic, type, or both.
Some online legal research platforms, such as Bloomberg Law, WestlawNext, or Lexis Advance, allow the researcher to browse their secondary resources by topic and perhaps the types of secondary sources on that topic. Such categorization may be broad or narrow. For example, one platform may have a single category for Intellectual Property, while another may further sub-divide that subject area into Copyright, Unfair Competition, Trademarks, and Patents. Figure 22.214.171.124a shows how WestlawNext uses the broad category of Intellectual Property and then provides a listing of secondary sources by type: ALRs, Texts & Treatises, Law Reviews & Journal, Forms, and more.
Figure 126.96.36.199a: Types of Intellectural Property Secondary Sources on WestlawNext.
Some platforms will also allow the researcher to browse the secondary sources available that relate to a specific jurisdiction. On Lexis Advance, the Browse Sources screen provides filters to narrow the list of titles by category or type of resource, jurisdiction, and practice areas and topics. These filters are indicated by arrows in Figure 188.8.131.52b.
Figure 184.108.40.206b: Filters for Narrowing Sources in Lexis Advance. Reprinted from LexisNexis with permission. Copyright 2015 LexisNexis. All rights reserved.
Once the researcher has browsed and narrowed down the platform’s secondary sources to those on a particular topic, he can either use the finding aids to work with a specific source or use the search techniques described in Chapter 5 to search across the topical sources.
The secondary sources available on the three major legal research platforms vary widely as they each produce, or own publishers that produce, different titles. Some major titles (e.g. ALRs, Restatements) are available on multiple platforms due to licensing arrangements, but specific treatises and practice materials typically are not. If a researcher has access to more than platform, he may need to check more than one to find appropriate secondary sources on point.
220.127.116.11 Online Catalogs
Online catalogs are another starting point for finding both print and electronic resources on point. For law students, the law school library will have an online catalog containing records of its print and electronic resources. Most importantly, each record will have one or more Library of Congress subject headings associated with it. The researcher can search the subject headings directly in a fielded search, or he can search the catalog by keyword and then browse the subject headings found on records that appear to be relevant. Records for print resources will provide him with call numbers for locating the item in the library’s physical collection; records for electronic resources will contain links directly to the resource online.
These catalogs can be useful for practitioners as well. A law firm may have its own catalog the researcher can use as a starting place to identify resources held by your firm. If an organization does not have its own catalog, researchers can use collaborative catalogs such as Worldcat to identify resources. Because libraries from all over the world contribute their records to Worldcat, it can be an excellent starting point to identify the world of resources available on a given topic. A researcher may then check to see if his organization has access to those resources or use Worldcat to identify the libraries nearby that may provide access to those resources.
Figure 18.104.22.168: Using Worldcat to find a Treatise. Click here for screencast: http://youtu.be/jPzthzsGyxk
22.214.171.124 Online Research Guides
Another excellent starting point for finding topical secondary resources are research guides created by law librarians. Most university law libraries feature designated webpages to guide researchers to the items in the library’s collection relating to particular legal subjects. These guides may identify the most highly-regarded secondary sources on topic, give instructions for how to use particular resources, and discuss methods for further research for primary and secondary authorities on point.
There are a few ways to find these online research guides. One strategy would be to look at the law library websites for the law schools in the jurisdiction in which you are researching. Those websites will list their research guides and may well provide jurisdiction-specific information.
Another strategy would be to utilize Google or another web search engine to search research guides across institutions. By using the site:.edu search operator on Google, you may restrict your search query to look only at educational websites. If you include the legal topic you are researching and the term “legal research,” the search results will primarily be from research guides developed by law school librarians. For instance the following search will return librarian-produced research guides that will lead researchers to products liability treatises:
site:edu AND “products liability” AND “legal research”
Of course, if you have access to one, even better than consulting a librarian-produced research guide would be consulting an actual librarian.
In the current era, so much information is available in just a few clicks online we sometimes forget that asking a knowledgeable individual for assistance remains an option. However, as many of the strategies discussed in this book indicate, the amount of information that is a few clicks away can be the problem. Asking a reference librarian or another individual, such as a practicing attorney, knowledgeable about the area in which the researcher is investigating is sometimes the quickest way to find relevant materials on point. Reference librarians are the people most familiar with their collections, whether that be a law school library or the library of a private organization. They are experts in utilizing many of the systems described in this text and those specific to their own institutions. Their jobs are not only to be familiar with those systems and resources but also to help others navigate them. If the researcher is unsure of where to begin his research or has reached a roadblock after pursuing a variety of leads, a reference librarian, an attorney specializing in that area of law, or other legal information specialist may be able to guide him to resources to propel him forward.
Like codes, secondary sources tend to possess an inherent topical organization. Thus, expert researchers often find the use of print secondary sources to be more efficient than electronic versions. We will briefly discuss the chief methods of use of secondary sources in print.
126.96.36.199 Organization & Finding Aids
Some print secondary sources are organized chronologically, but most are organized by topic. A legal encyclopedia is organized alphabetically by general topic; a subject treatise is organized in a logical progression of sub-topics; a practice series may be organized by general subject area and then specific subtopics. Skimming the table of contents can be a quick way of identifying the major topics covered by the source. A secondary source set consisting of a large number of volumes may have different levels of tables of contents much as a statutory code does: a table of contents for the entire set, a table of contents for a chapter, or even more granular levels. Article-based secondary sources such as ALRs or legal encyclopedias will usually have a table of contents at the beginning of an article.
Even with multiple levels of tables of contents, the index is often the researcher’s best starting point. Indexes alphabetize in detailed lists the topics and sub-topics covered by the source; they are far more detailed than even the most specific table of contents. Most secondary sources will have an index published at the end of the volume or in the last volume of the set if the source consists of multiple volumes.
Secondary sources may also include tables listing primary authorities along with references to where the authorities are discussed in the text. This can be useful if the researcher has a citation to a particular source of law on which he is interested in finding further analysis. Such tables are usually also located at the end of a volume or set and may be called a Table of Cases or Table of Authorities.
For the secondary sources organized chronologically, the utilization of the relevant finding aids is critical. For example, the annotations in ALRs are published in chronological order. There may be more than one article on divorce and child custody, but they will not be found in close physical proximity the way they would be in a practice series. The only way to identify annotations that discuss a particular topic is to use the available index. Law reviews and journal are also published chronologically; relevant finding aids are discussed in section 6.3.4.
188.8.131.52 Updating in Print
Topical secondary sources in print may be published either in bound volumes or in loose-leaf fashion. As discussed with digests and statutory codes earlier, hardbound volumes are expensive to produce and so hardbound secondary sources are updated in a similar manner to their primary authority counterparts. Pocket parts are used to update individual volumes and will be found in a pocket at the back of a volume; supplements may be stand-alone soft-bound publications relating to an individual volume for a particular set or may be an update to the set as a whole.
Loose-leafs are an alternative publication format that makes integrating updates into the text somewhat easier. “Loose-leafs” is the term used to refer to treatises or practice materials that are published in a binder rather than a bound volume. To update loose-leafs, the publisher of a title sends pages to replace those that have become dated. The old pages are removed and the new pages inserted; the table of contents, index, and other finding aids of the volume may be updated as well to reflect the new content. This method of updating eliminates a step for the researcher; there is no need to consult additional parts in the set to update the material, as required with hardbound sets. The disadvantage to this updating method is that it can be hard to track down what that secondary source said at a given moment in time, as a researcher might need to do when tracking down secondary sources cited in older documents.
Every print title has a slightly different updating schedule and process, whether in hardbound or looseleaf format. If a researcher needs assistance in updating a resource, he should contact a reference librarian for assistance.
Using electronic secondary sources gives researchers an additional finding aid: keyword searching. Many of the legal research platforms allow you to perform a keyword search across the content of the entire platform. As a practical matter, this is often not the best approach to finding relevant secondary sources. A general keyword search is likely to bring back thousands of results from a wide variety of sources. Sorting through the results of such a general search to determine what type of source the material came from and if it is on point or merely mentioning the topic of interest in passing can be time-consuming. Narrowing the search first by browsing as described in section 184.108.40.206 to find materials on point and then searching across materials on the topic or searching within a specific title is usually more efficient. Alternatively, the researcher may be able to perform a keyword search and then use post-search filters to narrow the results list before perusing them. Researchers can utilize many of the same search strategies described in Chapter 5 for researching primary authorities.
While keyword searching is an additional finding aid for accessing secondary sources, it is not necessarily a superior option to the traditional finding aids. Often the researcher is using a secondary source to become familiar with an area of law and to begin building a vocabulary to be used in primary source research. So, if the researcher does not yet know the appropriate vocabulary to the topic, keyword searching may not get him very far.
Though the temptation to search is there, do not overlook a source’s inherent organizational structure. Browsing the table of contents can be as effective in the electronic universe as it is in print, particularly if the researcher is unfamiliar with the relevant terminology used for the topic.
In addition to the table of contents, the legal research platform or publisher may reproduce other finding aids that are useful in print. Check to see if an electronic version of the index has been included; again, the index is extremely useful when one is unfamiliar with the terminology that would allow you to search. Sometimes such an index may be just a reproduction of the print, requiring you to search the document via the Find feature in your browser (control+F or command+F). For some sources, the index may be searchable on the platform.
Figure 6.3.3: Using an electronic index. Click here for screencast: http://youtu.be/lHr2npg4moY.
Scholarly legal journals publish articles on many topics but lack any internal topical organization. Luckily, researchers may use several electronic tools to find articles on topics of interest.
Finding relevant law review and journal articles is a somewhat different task than finding other secondary sources described in this chapter. Thousands of law reviews are published every year across hundreds of individual publications. Checking each title for articles on a topic is impractical. Fortunately, there are publications that index those thousands upon thousands of articles by topic. There are two such general indexes in print: Index to Legal Periodicals and Books and the Current Law Index. Like Shepard’s Citator, however, these publications are often no longer carried by libraries, as their online incarnations are superior tools. The electronic versions are the commercial databases Index to Legal Periodicals & Books (ILP), now available through EBSCO, and LegalTrac, available through Gale Cengage, respectively. Most university law libraries subscribe to one or both. These indexes cover roughly 1980 to the present; to research older articles you need to use a separate index, the Index to Legal Periodicals Retrospective. There are also indexes that cover specific legal practice areas, such as the Index to Foreign Legal Periodicals (on HeinOnline).
These electronic indexes allow the researcher to search their records by keyword, author, or subject. Depending on the subscription, these indexes may provide full-text of some or none of the articles. If the latter, a search may provide the researcher only with an abstract and a citation; he will need to find the full-text article by using another resource such as those described in the next section.
220.127.116.11 Full-text Commercial Platforms
Apart from indexes, there are several legal information platforms that allow researchers to perform full-text searches across all the journal articles available on the platform. HeinOnline is the platform with the most comprehensive coverage of law school reviews and journals, though it sometimes will not contain the most recent issues. WestlawNext and Lexis Advance also have selections of journals on their platforms and are more likely to contain the most recent issues. Again, the researcher can utilize many of the search techniques described in Chapter 5 when searching on these platforms.
Figure 6.3.6: HeinOnline and journal research. Click here for screencast: http://youtu.be/kPOVjvsOwI8.
18.104.22.168 Free Resources
There are also free resources available online for searching scholarly legal publications. Many universities promote their faculty by participating in open access repositories and are thus making their faculty scholarship available for free online. There are several ways to find such materials; this text will highlight three.
Many law professors post their published articles and works in progress on SSRN, or the Social Science Research Network. SSRN makes these works freely available to the public. The site can be searched and browsed down to specific legal areas of research, but it can be slow and difficult to use.
Digital Commons is a platform used by many universities to host and provide free public access to their faculty’s scholarship. BePress, the creator of Digital Commons, has created a publicly available search engine called the Digital Commons Network to search across all the universities that are hosting their scholarship using Digital Commons. The Network even provides a faceted search to drill down by topic, publication year, and more.
Finally, the Google product Google Scholar utilizes the company’s powerful search algorithms to search only scholarly materials rather than all content on the web. It searches the scholarly content made available for free by universities as well as the records of some subscription databases such as HeinOnline and LexisNexis. Google Scholar pulls in only citations rather than full-text articles from those subscription databases. An additional limitation of Google Scholar is that it will also pull in materials from the Google Books database with no easy way of filtering those materials out of the results.
With the wide variety of free and paid secondary sources available, a legal researcher can become overwhelmed with the amount of information accessible to him while still not quite finding the piece of information he needs. Knowledge of the types of the secondary sources and where and how to look for them will help the researcher be more efficient when beginning his research. And he should never forget the most direct way to find a resource on point: ask someone with knowledge of the legal topic or legal resources.
Now try your hand at using secondary sources in print or online with the following exercises:
Our client, Mary Smith, was adopted by the Smith family as an infant in California and would like to find her birth parents. You are a novice not only to adoption but to family law generally and need to educate yourself on this area of law. Please find the following:
A California practice guide or treatise on family law.
An AmJur 2d article that relates to whether an individual who was adopted can view her adoption records now that she’s an adult.
Our client, Lexington Online Inc., has published the names and phone numbers of all of Verizon’s Lexington subscribers in an online directory that is freely available on the Internet. Verizon is suing our client for, among other things, copyright infringement. Verizon says that they (Verizon) were the original authors of that information and Lexington Online’s directory is thus violating copyright. Our client says that they (Lexington Online) have just published facts and those are noncopyrightable.
Please find a reputable treatise on copyright and use it to perform some preliminary research on the following questions:
Please find a section that discusses authorship and originality. Which primary authorities are analyzed in this section? According to this treatise, what makes a work “original” in terms of authorship?
Please find a second section that discusses whether facts can be protected under copyright. Can facts be protected under copyright? Why or why not, according the treatise’s analysis?
Based on the information you’ve found so far, is it likely that Verizon will succeed on the copyright infringement claim?
What research avenues might you pursue after utilizing this treatise for preliminary background information?
Our clients, Ina and Mal Washburn, are being sued for vicarious liability in a traffic accident because they negligently entrusted the use of their car to their 16 year-old-daughter, Kaylee. Kaylee rear-ended another driver while driving down Highway 34 near the Washburns’ home in Pierre, South Dakota, while talking on her iPhone. The plaintiff, Diane Riker, is suing under the theory that the Washburns knew their daughter to be a reckless driver, as she has been ticketed for traffic incidents in the past and consistently talks on the phone while driving. The Washburns insist that none of Kaylee’s prior traffic incidents involved her smartphone.
Your supervising attorney is unaware of any South Dakota caselaw on point and would like you to find authorities on point from other jurisdictions.
Find a relevant ALR annotation regarding liability, smartphones, and car accidents.
Does this annotation list any primary authorities from South Dakota?
What section(s) of the annotation seems most applicable to our situation? What primary authorities does that section(s) refer to?
Does this article refer you to any additional secondary sources that might be worth pursuing? If so, which ones would you start with and why?
CALI hosts an impressive number of interactive lessons on its website. The following lessons on secondary sources touch upon material covered in this chapter. They would be a great place to start for students looking for further practice on the concepts introduced in this chapter!
6.5.1 “Introduction to Secondary Sources” by Brian Huddleston
Summary: an overview of secondary resources used in legal research. Secondary resources are books and other material ABOUT legal subjects and issues: they discuss and explain primary resources such as cases and statutes and can be useful in assisting our understanding about specific areas of law. The student will learn about the different types of secondary resources and what secondary resources are most useful for specific types of legal research tasks.
Lesson ID: LWR35
6.5.2 “Legal Encyclopedias” by Brian Huddleston
Summary: an introduction to understanding and using the two most common legal encyclopedias, American Jurisprudence 2d and Corpus Juris Secundum.
Lesson ID: LWR40
6.5.3 “Using the Restatements of the Law” by Sara Burriesci
Summary: an overview of what the Restatements of the Law are and why one would use them for legal research, their major features, how to search them, and how to use them to find cases.
Lesson ID: LWR38
6.5.4 “Researching Uniform and Model Laws” by Beth DiFelice
Summary: an overview of how uniform laws are created and shows researchers how to locate uniform laws, drafters’ commentary, state versions of uniform laws, and cases interpreting them.
Lesson ID: LWR25
6.5.5 “Researching and Working with Procedural Forms” by Shaun Esposito
Summary: an overview of the use of procedural forms designed to assist in litigation practice.
Lesson ID: LR107
6.5.6 “Researching and Working with Transactional Forms” by Morgan Stoddard
Summary: an introduction to locating and utilizing transactional forms.
Lesson ID: LR103
6.5.7 “Periodicals Indexes, and Library Catalogs” by C. Andrew Plumb-Larrick
Summary: an overview of two of the most important external finding tools–periodicals indexes and library catalogs–that you can use to help find secondary sources relevant to your research.
Lesson ID: LWR34