Secondary Authority

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Secondary Authority

Sources of information that describe or interpret the law, such as legal treatises, law review articles, and other scholarly legal writings, cited by lawyers to persuade a court to reach a particular decision in a case, but which the court is not obligated to follow.

Secondary authority is information cited by lawyers in arguments and used by courts in reaching decisions. Secondary authority is distinct from primary authority. The sources of primary authority are written laws passed by legislative bodies, prior judicial decisions, government administrative regulations, and court rules. Courts are obliged to decide cases by following the dictates of primary authority, and lawyers must make arguments based on the primary authority that is applicable to the case.

Neither lawyers nor courts are required to use secondary authority, but both may do so to buttress arguments based on primary authority. Among the most commonly cited sources of secondary authority are the restatements of law, written by the authors, scholars, and legal professionals that make up the American Law Institute. The restatements contain suggested laws and rules on a wide assortment of legal topics ranging from contracts to torts to conflicts of laws.

Law reviews and other scholarly works are other commonly cited sources of secondary authority. Law reviews are articles about legal topics published by law schools and other legal organizations and written by law professors, law students, and other academics. Other groups publish legal literature that may be cited by lawyers and courts. The American Law Reports provide case synopses of recent legal developments with a focus on court decisions, and Continuing Legal Education programs conducted by and for attorneys produce literature that may be used by lawyers and judges.

Legal encyclopedia articles and legal dictionaries are less commonly cited in court although the U.S. Supreme Court has, on occasion, used Black's Law Dictionary to support its definition of a legal word or phrase.

Further readings

Kunz, Christina L., et al. 2000. The Process of Legal Research. 5th ed. Gaithersburg, Md.: Aspen Law & Business.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
The court took the additional step of providing clear (and, in our experience, common) actions that constitute alienation and directed us to secondary authority for further details.
No secondary authority, however expert it may be, can offer guidance or principles that conflict with legal duties and expect them to gain acceptance within the legal community.
This fact places them strongly as a secondary authority supporting and clarifying legal requirements.
(85) Third, if a case or secondary authority received repeat citations in the same paragraph it was counted only once, but if it was cited again in a subsequent paragraph it was counted each time on the basis that the source was being cited for a different proposition and hence had separate significance.
(10) Russell Smyth, 'The Authority of Secondary Authority: A Quantitative Study of Secondary Source Citations in the Federal Court' (2000) 9 Griffith Law Review 25.
(21) Russell Smyth, 'A Century of Citation of Case-law and Secondary Authority in the Supreme Court of Western Australia', 34 University of Western Australia Law Review 145 (in press).
binder) format, both treatises (like those published by the Illinois Institute of Continuing Legal Education), and "Big L" Looseleaf services (those large sets that compile both primary law and secondary authority and commentary on the subject).
They first outline the legal system, followed by computerized and internet research, reports, digests, validating, secondary authority, administrative material, research strategy, practice and ethical rules, writing and editing fundamentals, basic legal writing, memoranda and letters, case briefs, legal memorandum, statements, and the synthesis of cases using the IRAC method.
Be aware, however, that Web-based tax research products generally differ significantly in terms of the quality, depth and scope of secondary authority provided, so when considering a service, check its content carefully.