Secondary authority

Definition

Secondary authority refers to legal sources that interpret, explain, or analyze primary law, such as statutes, regulations, and case law. Unlike primary authority, which includes official legal texts, secondary authority helps lawyers and judges understand the law and its application through commentary, critiques, and summaries provided by experts in the field.

5 Must Know Facts For Your Next Test

1. Secondary authority is not legally binding but is persuasive and can greatly influence court decisions and legal interpretations.
2. Common forms of secondary authority include law review articles, legal encyclopedias, treatises, and restatements of the law.
3. While secondary authority can be useful for research and understanding legal principles, it should always be supported by relevant primary authority when making legal arguments.
4. Judges and attorneys often cite secondary sources in court to provide context or support for their legal reasoning.
5. Understanding how to effectively utilize secondary authority is essential for thorough legal analysis and research.

Review Questions

• How does secondary authority differ from primary authority in terms of its role in legal research?
  • Secondary authority differs from primary authority in that it does not hold binding legal effect but serves to interpret and analyze the primary sources of law. While primary authority includes statutes and case law that must be followed, secondary authority offers insights, critiques, and guidance that can aid lawyers in understanding how the law operates. Secondary sources can help to clarify complex legal issues and provide a deeper understanding of the legal landscape.
• What are some examples of secondary authority, and how might they be utilized in a legal argument?
  • Examples of secondary authority include law review articles, treatises, legal encyclopedias, and commentary by legal scholars. These sources are utilized in legal arguments to provide context or support for positions taken based on primary authority. For instance, a lawyer might reference a treatise to bolster an argument by showing how respected experts interpret a specific statute or case law.
• Evaluate the significance of secondary authority in shaping judicial decisions and legal interpretations within the context of modern law practice.
  • The significance of secondary authority in shaping judicial decisions and legal interpretations lies in its ability to provide clarity and context to complex legal issues. In modern law practice, judges may rely on secondary sources to guide their understanding of evolving legal principles or societal norms. As law becomes increasingly intricate, secondary authorities offer valuable perspectives that inform court rulings, influencing how laws are applied and interpreted in real-world situations. This interplay underscores the importance of both primary and secondary authorities in ensuring that justice is served effectively.

Related terms

Primary Authority: Legal sources that have binding legal effect, including constitutions, statutes, regulations, and case law.

Legal Commentary: Written opinions or analyses by legal scholars or practitioners that provide insights into the interpretation of laws and legal principles.

Treatises:

Comprehensive written works that provide detailed discussions and analyses of specific areas of law, often authored by recognized experts.