Secondary authority is not the law. Secondary authorities such as legal dictionaries and encyclopedias, books and treatises, and journal articles explain and analyze the law and help researchers understand and locate primary authorities. Overall, if authorities such as the laws and jurisprudence that establish the law are primary sources, anything that discusses and analyzes primary sources is more than likely secondary sources. Although they cannot be directly invoked as a legal authority, secondary sources remain among the most important authorities that can be used in legal arguments. If secondary sources don`t really establish the law, why should they care? The benefits don`t stop there; As diverse and extensive as secondary sources are the many ways they can add value to your law practice. They should always be a central part of any research process to ensure that the resulting product is of the highest quality. The next source of authority according to the statutes in the hierarchy is the law derived from the executive power or executive agencies. These are generally rules or regulations that government experts must create in accordance with the requirements set out in the laws passed by the legislature. An example of executive branch would be a specific regulation on what is and is not allowed when growing lettuce if such a rule has been enacted by the Food and Drug Administration. Regulations basically only interpret laws, but they can always serve as a binding authority. The highest level of authority in the federal system is the United States Constitution. Similarly, states have state constitutions that serve as the supreme source of authority over state law. They are the foundational documents that advance all the powers that governments assume or create.
Legislators, executives and the judiciary cannot override these basic documents. Some secondary authority documents are written and published by governments to explain laws in simple, non-technical terms, while other secondary authority documents are written and published by private companies, non-profit organizations, or other groups or individuals. Here are some examples of primarily American secondary authority: There are a number of reasons why secondary sources are so essential to legal practice. One of the main reasons for this is that secondary sources may reflect the prevailing view on how courts interpret primary sources. Some secondary sources are so authoritative that the courts themselves rely on them in their decisions. Many secondary sources have value beyond citability in a legal argument. In particular, many titles offer valuable information about current court decisions or new laws. Some may analyze new legal authorities to break down their meaning into more digestible terms, while others consider the potential impact of a new judgment or law. Even more secondary sources can examine current legal trends or the current state of a particular area of law, based on recent court decisions or updates to laws. In this lesson, we will begin to discuss the origin of this rule statement.
This is really the first question in determining the relevant rule statement. Where am I looking and what law applies? This is what I call authority. Authority is the cornerstone of any legal analysis. Without authority, the rule statement is at best the opinion of the author, and at worst it is a bad law. Therefore, to be an effective writer, thinker, and legal advocate, one must always start with a solid foundation in the sources of authority of American law, the hierarchy of that authority, and have a good understanding of how these different sources of authority fit together. So what is not considered a primary authority? This is not all that does not come from a government actor acting in her official capacity. These other sources of authority are called secondary authority. These are sources such as legal review articles, legal encyclopedias, treaties, and blog posts. In any case, the secondary authority informs you about the law, but it is not a law in itself.
Therefore, in legal analysis, it is customary to quote and rely on primary authority whenever possible when developing legal norms. Although the branches of government are equal, there is still a hierarchy of legal authority. In law, a secondary authority is an authority that purports to explain the meaning or applicability of the actual literal texts of primary authorities (such as constitutions, laws, jurisprudence, administrative regulations, implementing regulations, treaties or similar legal instruments). Although secondary authorities are sometimes used in legal research[2] (in particular to enable a researcher to gain a preliminary and general understanding of an unknown area of law) and sometimes even cited by courts when deciding cases, secondary authorities generally have less weight than the actual texts of the primary authority. In short, because secondary sources reflect how the law is perceived, they are really important for a more complete understanding of the law. Given the importance of secondary sources in understanding the law, you may not need to be very convinced that they can improve your legal practice. However, you may be less clear about exactly how they can be used for this purpose. The powers of persuasion that the courts must obey are called mandatory (or binding) authority. The authorities that courts can follow if they are persuaded to do so are called persuasive (or non-binding) authorities.
Secondary authority is the information cited by lawyers in arguments and used by courts in decision-making. Secondary authority is different from primary authority. The sources of the principal authority are written laws adopted by legislative bodies, previous judicial decisions, state administrative regulations and court rules. Courts are required to rule on cases according to the precepts of the primary authority, and lawyers must present arguments based on the principal authority applicable to the case. With a basic understanding of the structure of the U.S. legal system, available sources of law, and the application of the weight of authority, you`ll be prepared to evaluate the resources you`ll find in your legal research. For some of you, this may be familiar if you return to civics in high school. For others, it could be brand new. Either way, it`s as important as being able to analyze as a lawyer. So, if this is an exam, starting your research will help you learn to think, write, and defend like a lawyer. If it`s brand new, realize that this is just an introduction and you`ll probably have to spend a little more time digging into the sources and hierarchy of authority once you start your legal studies. Textbooks are generally not considered secondary authorities, with the exception of some respected and long-standing authorities.
For starters, as mentioned above, using secondary sources in your research process usually leads to a more complete understanding of the legal topic in question. Being able to know not only what the law says, but also what others say about the law, can add a distinctly reliable flavor to your legal argument. Given the gross size of the resources that the term encompasses, it may be useful to define “secondary sources” first. The primary authority (the law) can be mandatory or persuasive, depending on: Four types of primary authority in the federal system (the last three of which correspond directly to the three branches of the federal government). First, let`s distinguish two types of authority. The former is known as primary authority and the latter as secondary authority. In the next course, we will look at the last source of authority, judicial decisions. Primary authority is simply any form of legal authority emanating from a government agency acting in its official capacity.
The four types of primary authority in the federal system are the U.S. Constitution, federal laws codified in what is called a U.S. code, federal regulations, and decisions of federal courts. The last three correspond directly to the three branches of government. The legislature is responsible for the enactment of laws, the executive for regulations and the judiciary for legal decisions.