This lesson discusses primary and secondary sources of law as well as the role of both in legal research. Here, we will examine how to find and use these sources as students learning about the trial court process in the United States.
Laws in the United States
Imagine you’re a law student trying to study for a big exam – where would you even begin to sort out the many complicated laws and cases that we have in the United States? There are many different laws and thousands of cases involving them. There are both civil laws and criminal laws, which can be different among the federal, state, and local governments nationwide. As a student, you need a way to get information in an organized, useful manner. This will help you study, and it will help you later when working as an attorney. For both law students and attorneys, there are many tools available to help sort out our complicated legal system.
We separate these tools into two groups: primary sources and secondary sources.
Primary Sources of Law
A primary source of law are the texts of a law itself and all court cases related to it. A law specifies what a person can or cannot do, under what circumstances, and in what location.
Some are crimes, such as murder, theft, or arson; these laws must include what punishment must be applied for someone who is caught breaking it. Others are civil statutes, such as the process of adoption of a child or the immigration process for a new citizen. When a person is accused of a crime or a violation of a civil statute, he or she may go before the court for a judge and jury to hear the case.Laws are created by many different bodies; Congress writes new bills, which are passed into law by the president. A state has its own legislature, which creates statutes that are signed into law by the governor. Cities can create ordinances that apply to their geographic area, such as no parking zones on certain streets.
There are state and federal agencies with the authority to create laws over their limited jurisdiction as well. For example, the Environmental Protection Agency is authorized by the President to define standards of clean air and water that companies must comply with when disposing of hazardous waste material.Primary sources of law also include all court cases about an existing law. The Supreme Court, as the highest court in the United States, has the authority to rule on whether a law accurately follows the Constitution and all interpretations of it by the Supreme Court in earlier cases. Our laws in this country are built upon one another through the principle of stare decisis, where we apply previous court decisions (called precedents) to similar future cases. The goal of stare decisis is to keep the verdict consistent from one case to the next, if the circumstances are comparable.Court cases can have either mandatory authority or persuasive authority.
Decisions of the Supreme Court have mandatory authority that every other court must follow, while decisions of lower courts, including state supreme courts, have persuasive authority. This means that they can be used by an attorney to try to persuade another court to follow the same reasoning, but that court can choose whether or not to accept the original legal reasoning.
Secondary Sources of Law
Secondary sources of law are written materials that help us understand and interpret the law and court cases. It is all other legal material, besides the text of the law and case decisions, that is used by attorneys when preparing a case. There are many examples of these interpretive materials. Let’s review a few for comparison:
- Legal encyclopedias organize information on legal topics. American Jurisprudence and Corpus Juris Secundum focus on national laws, while others like Michie’s Jurisprudence of Virginia and West Virginia discuss state laws.
- Legal dictionaries define and give examples of legal terms, translating from Latin into English when necessary.
- American Law Reports (ALRs) are annotated essays on very specific circumstances of cases, either for state law or, in the case of the ALR Fed, federal law. They are used by attorneys to look up related cases when preparing for trial.
- Law journals are scholarly journals of articles on a case or set of cases, usually written by law professors, which are edited and organized by law students and often contain huge numbers of legal citations on a given topic.
- Online legal materials include websites, such as LexisNexis and Westlaw, that offer electronic, searchable databases of most print legal resources, including primary and secondary sources.
These secondary sources help lawyers prepare a case, allowing them the chance to review what other courts have decided, review how other attorneys have framed similar arguments, and to support their own cases with legal precedent. As a law student or an attorney, you rely on these sources to help you make sense of the many cases and laws that exist in each state and nationwide.
There are primary and secondary sources of law.
Primary sources of law are the text of the law and any court cases about it. Secondary sources of law are all other legal material that helps us understand those laws and cases.