LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM
2.2 Legal Authority Generally
2.2.2 Secondary Legal Authority
Annotated Lecture Transcript
So what is secondary authority?
Secondary Authority: Black’s Law Dictionary defines “secondary authority” as:
Ø “Authority that explains the law but does not itself establish it[…]”
o The examples it gives are treatises, annotations, or law review articles.
o So, secondary authority is anything that helps judges and lawyers understand the law, but that does not, on its own, represent binding legal rules with the force and effect of law.
o For example, The Restatement (Third) of the Foreign Relations Law of the United States is an example of an excellent source of secondary legal authority on foreign relations law.
o It’s a blackletter restatement of all sources of primary legal authority on foreign relations law.
o Restatements are drafted by members of the American Law Institute—a highly prestigious organization of top American law professors and practitioners.
o A Restatement’s blackletter provisions do not represent “law” in their own right, but they are instrumental in helping judges and lawyers understand what the law says on any given topic.
o The drafters of the Restatement examine all the binding case law relevant to a legal issue and then crystalize the common law rule into a well-crafted blackletter statement of legal principles.
o Although these blackletter rules are not technically “law,” they represent a very persuasive interpretation of the law and are often relied on very heavily by judges and practitioners.
Other examples of secondary authority include sources like
Ø Law review articles;
Ø Even the text of this lecture.
Secondary authority can be anything.
Any commentary on the law is considered “secondary authority.”
Anything that a judge might use to interpret the law that isn’t itself law, that’s secondary authority.
Of course, some secondary sources are more persuasive than others.
The Restatement of Foreign Relations Law, for example, is very persuasive secondary authority.
Your sister’s law school diary? Not so much.
You have to use common sense when choosing secondary sources.
Think about your audience.
If you know the judge handling your case is a devoutly religious man, you might throw in some support for your argument from the Holy Bible.
The Bible doesn’t represent primary legal authority that’s enforceable in U.S. Courts, but it can be very persuasive as secondary authority to the right decision maker.
If your judge happens to be a Satan worshipper, find yourself a copy of The Devil’s Handbook and scour it for support for your legal argument.
Hey, we’re lawyers—we aim to win.
 Black’s Law Dictionary 129 (7th ed. 1999).