CHAPTER 9 SECONDARY SOURCE RESEARCH
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Chapter 9 SECONDARY SOURCE RESEARCH
A. SECONDARY SOURCE ORGANIZATION
Most of this guide has been dedicated to finding primary authority because that is the goal of the researcher. However, secondary authority can play a valid role in the research process. Furthermore, there is a hierarchy of secondary authority which will be discussed in this chapter.
Secondary authority is not the law itself; it is an analysis or explanation of primary authority. Although secondary authority should be cited infrequently in a legal memorandum or appellate brief, it can serve an important purpose in the research process.
There are two functions of secondary authority. The first is as a means of finding primary authority. As a research tool, the most valuable parts of these sources are the references because they provide the researcher with primary authority such as cases, statutes, or administrative codes, rules, and regulations. The second function of secondary authority is to provide insight into and background information on a particular problem. Thus, secondary authority can provide an overview of a subject or basic understanding to an area of law with which the researcher is unfamiliar.
Before using secondary authority, the researcher should ask certain questions about the advisability of using this type of source. The following checklist provides some guidance as to its value and the response to the researcher's mental query.
1. Is there any primary authority from the jurisdiction where the case is being litigated?
a. If this is a "case of first impression," then the court will be more receptive to reviewing the secondary authority.2. Is secondary authority being used as a substitute for primary authority?
b. If the case presents a novel issue, then a source that weighs the merits of the issue is helpful.
a. If yes, then do not use it.3. Is the secondary authority merely repetitive of the primary sources that are being used?
b. If no, then it may be used to bolster the legal argument.
a. If yes, then delete the reference to it.4. Will the source aid the court in its interpretation of primary authority?
b. If no, then use it sparingly.
a. If yes, then it may be used, particularly if it is a new area of law or one where there has not been much litigation.5. Is emphasis and a place of prominence given to secondary authority in the legal memorandum or appellate brief?
b. If no, then it is irrelevant.
a. If yes, then reassess its use because too great an emphasis is being given to it.6. Is there a proper foundation or predicate for the secondary source? Corollary issues to this point include the following questions:
b. If no, then use it wisely and sparingly.
a. Is the source reliable?7. If the secondary source is critical of a recent decision which has charted a new line of reasoning or has incorrectly applied the law, then there may be a valid role for the commentary.
i. The quality of the product depends on the reputation and skill of the author.b. Is there contradictory primary authority?
ii. It also depends on the reputation of the publisher, i.e., for accuracy, etc.
i. Court opinions, statutes, or the constitution will control.
B. HIERARCHY OF SECONDARY AUTHORITY
All secondary authority is not created equal! There are differences in these sources both in the weight of their authority and the likelihood of finding pertinent information. However, a typical reaction of a novice researcher is to use the first source without analyzing why that source is appropriate or inappropriate. It is the goal of this chapter to provide some insight on the use of secondary authority and why certain sources are more effective than others. Therefore, the discussion of secondary authority will consist of a brief description of that source; an itemization of the purposes of the particular material; some suggestions for appropriate ways to use the source within this hierarchy of secondary authority; and finally, a checklist describing the process of research for each source.
[1] Attorney General Opinions
[a] Description
Attorney General Opinions exist at both the federal and state levels of government. The Attorney General is the counsel for the government. Consequently, government officials can make a written request for a legal opinion on particular governmental matters. Three preliminary requirements must be met: (1) there must be an actual problem; (2) the problem must be presented to the Attorney General before the state or federal government is involved in civil or criminal litigation; and (3) it must be a question of law and not fact.
The Attorney General's opinions combine aspects of both primary and secondary authority. They are primary in the sense that they are opinions which are written like a judicial opinion and are supported by primary authority, and therefore, they are very persuasive. For example, there is a Supreme Court case where an auditor abused his discretion because he refused to follow an Attorney General Opinion. The opinions are also secondary in nature because they are only advisory opinions and are not binding or mandatory. Because of this dual status, Attorney General Opinions can be placed at the top of the secondary authority hierarchy.
[b] Purpose
Attorney General Opinions fulfill two purposes. First, through these opinions, the Attorney General gives legal advice to the President or Governor, as the case may be, or to the legislature and administrative agencies. Second, the Attorney General construes statutes and interprets judicial decisions and administrative regulations, particularly where the effect of the primary authority is uncertain.
[c] Use
When a researcher has a legislative problem, some consideration should be given to checking for an Attorney General Opinion. Opinions are an effective source of authority because: (1) they are written in response to specific inquiries by a government official about a current problem and not just an abstract or moot issue; (2) they are written in the style of a judicial opinion and supported with primary authority instead of being merely the "opinion" of the Attorney General; and (3) they are noted as cited references in Shepard's Federal Citations, U.S. Administrative Citations, and state citators.
[d] Location Method
EXAMPLE #1: On March 17, 2008, the Chair of the Ways and Means Committee requested that the Attorney General of Texas construe Texas Constitution article III as to whether a county may grant funds to a school district or charter school. On September 12, 2008, the Attorney General responded to the Chair of the Ways and Means Committee in Attorney General Opinion GA-0644. His opinion cited the Texas Constitution, statutory provisions, case law, and prior Attorney General Opinions. He concluded that Article III, § 52(a) of the Texas Constitution does not permit a county to gratuitously grant county funds to a school district or charter school, but it could make a payment if it accomplished a county purpose.
EXAMPLE #2: The Bexar County District Attorney asked the Attorney General whether the county clerk must accept for filing a "declaration of domestic partnership." The Attorney General responded on December 16, 1999 in Attorney General opinion JC-0156 by analyzing various statutory provisions including Family Code § 2.001, case law, and prior Attorney General Opinions. He stated that Texas recognizes only two forms of marriage, ceremonial and informal, and discussed each of those types. Texas does not recognize marriage between persons of the same sex whether they are ceremonial or informal. Declarations of domestic partnership are not documents required or permitted by law to be recorded. Therefore, the county clerks are not required to accept them for recording.
[i] Print Version
If the researcher is researching using the print version, there are four ways to find Attorney General Opinions. First, the researcher can check the individual index for the annual bound volume of opinions. Second, the researcher could check the digest of opinions if a digest is available. Third, if the researcher had already found a case or statute, then by Shepardizing it will show whether there was an Attorney General Opinion in its cited references. Fourth, the researcher could check secondary sources to find an opinion cited in the footnote.
There is no formal updating process for Attorney General Opinions. The index or digest would be the best ways to determine if additional opinions have been issued on a particular topic. As a general rule, Attorney General Opinions cannot be Shepardized.
[ii] Electronic Version
Attorney General Opinions can also be found through the electronic version, Lexis Advance and WestlawNext. Therefore, this problem could be resolved through either print or electronic versions.
[iii] Internet Version
Both Lexis Advance and WestlawNext have Attorney General Opinions that date back from 1791. This collection includes the official opinions of the U.S. Attorney General as well as the Opinions of the Office of Legal Counsel of the United States Department of Justice. Opinions from the Office of Legal Counsel begin in 1977 to current.
In addition, there are other websites that provide Attorney General Opinions. For example, Hein Online at www.heinonline.org has access to the State Attorney General Reports and Opinions for all 50 states as well as Puerto Rico and the Virgin Islands. How far back the collection goes varies with each state. For Texas, the collection is from 1840 to current.
Print Version:
1. To locate an Attorney General Opinion:...
a. Check the individual index for the annual bound volume of opinions;2. Read
b. Check the digest of opinions if available;
c. Shepardize any relevant case or statute to determine if an Attorney General Opinion is a cited reference Shepard's; or
d. Check secondary sources to find an opinion cited in a footnote.
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