Secondary Sources

Secondary sources may be defined as those legal materials that are not in any way binding, although they may be persuasive, upon the courts. Included, among others, are treatises and periodicals. . Treatises-Treatises run the gamut from the most scholarly treatment of a particular legal subject to practice guides that make no pretense to scholarly analysis. Depending upon where they fit into this spectrum, they may be divided into the following groups:

l Scholarly surveys of particular fields in depth

l Hornbooks, student tests, and treatise abridgements

l Practitioners' handbooks in particular fields

l Specialized monographs on more or less narrow topics

c Comprehensive commentaries, histories, and works of juris prudence

The greatest danger involved to the researcher in the use of treatises is sometimes one of currency. A survey that is one day definitive in a given subject area may become quickly obsolete unless revised to reflect changes in the area.

. Periodicals-Periodicals are issued by law schools, bar associations, private publishers, or just about anybody else who has something to say and the money to pay for their publication. As you might guess, the quality varies from the first-rate scholarship of the best law school reviews to the hackwork of some special interest groups. In addition to the periodic indexes issued for the individual publication, there are a number of periodical indexes, most useful of which is the Index to Legal Periodicals. The JAG Journal and Off the Record are two periodicals of particular interest to Navy practitioners. Other publications that should prove useful are the Military Law Review (Army) and the Air Force Law Review (formerly the United States Air Force JAG Law Review).

FINDING CITED SOURCES

The use of citations in law serves as a means to identify the reference materials used in the preparation of legal writings. To standardize the system of citing legal References, the Harvard Law Review Association developed and published a comprehensive and standard system of citations known as A Uniform System of Citations (U.S.O.C.). The U.S.O.C., even though it does not adequately provide citation procedures to be used with military law, has been officially adopted for use throughout the Navy. In an effort to supplement the U.S.O.C. in those areas that are not adequately covered, JAG has developed supplemental guidelines, which can be found in JAGINST 5850.2, to be used with citing military law.

Although the combined system may at times seem needlessly complicated and arbitrary, it has the virtue of identifying precisely to the reader the exact reference intended by the drafter of legal material,

As an LN3 or LN2, you will seldom be required to construct citations to be used in legal writings or to conduct legal research, but you should be familiar with the methods used in citing legal References so you will be able to locate specific cases when you are asked to do so and the only thing you have to work with is a citation. To do this, you will need to know how to translate a citation to locate the source wherein the reference is to be found and the exact page or pages where the reference is located in that source. The following discussion should be useful in helping you become more familiar with the methods that are ordinarily used in citing statutes, court decisions, and other References. In addition to these discussions, specific information and instructions concerning citations may be found in the U.S.O.C. and in supplementary material supplied by JAG.

Statutes

Federal statutes are ordinarily cited to the U.S.C. by the title and section number, as well as the year the statutes were published. For example, a citation referring to section 501 of Title 10 of the U.S.C. would read 10 U.S.C. $ 501 (1970). When Statutes at Large are

cited, the volume and page number and date published would be used in the citation; for example, 47 Stat. 1470 (1933). However, in practice, reference is almost always made to the U.S.C. You may have occasion to look up a statute that has not yet been incorporated into Statutes at Large or U.S.C. When this occurs, the statute is referred to by the public law number assigned to it. This number can be found in the slip law that is an advance publication of the statute printed as a means of disseminating this law before incorporating it into Statutes at Large and the U.S.C.A citation using a public law number will tell what session of Congress passed the law, the number assigned to it, the section being referred to, and the date the law was enacted. An example of a citation using a public law number would read, Pub.L.No. 89-320, $ (Feb 11, 1965). This information can also help you find a public law in Statutes at Large. Citations of state statutes usually refer to the official code for that particular state. In cases where a state statute has not yet appeared in the official code for that state or if that state has no official code, then the citation usually refers to the preferred unofficial code. For example, a citation referring to a particular statute published in chapter 41 of the Massachusetts General Laws would read as Mass. Gen. Laws ch. 41, $95 (1932), which also tells you what section is being referred to and when the statue was published. State statutes may also be cited referring to that particular state's published session laws, which are the state's equivalent to Statutes at Large.

Court Decisions

Court cases are cited by names (plaintiff v. defendant) excerpted from what is called the style of the case. The citation of a court case refers to both the official (where there is one) and unofficial reporter, followed by both the title of the court that made the decision and the year in parentheses. The citation will show you the volume and page number where the cited case may be found. For example, a citation referring to a case decided by the Supreme Court of Virginia would be shown as Henderson v. Commonwealth, 215 Va 811, 213 S.E. 2d 782 (1975). The title of the court is not shown in Henderson, supra, because citations to state court decisions are presumed to be referring to the highest court of that particular state unless some other court is named in the citation. A citation to a case decided by the District Court of Appeals in Florida, which has no official reporter, would be shown as Lopez v. State, 372 So. 2d 1136 (FL Ct. App 1979). Where a court decision has not yet been published in an official or unofficial report, the citation will refer to the slip opinion (an opinion printed in advance of the publishing of the case decision in an official and unofficial reporter) and will cite the style of the case, docket number, the court of record, and the date the case was decided. Normally, citations of cases will provide you with the following information: the name (style) of the case, the name of the reporter and the volume the case can be found in, the page number where the opinion begins, the court that decided the case, and the year or date the decision was made. For example, United States v. Mathew's, 6 M.J. 357 (CMA 1979) refers to a case decided by the U.S.C.M.A. in 1979 and can be found in volume 6 of the Military Justice Reporter on page 357. Additional information concerning case citations and what they mean can be found in the U.S.O.C., JAG Instruction 5850.2, and Price and Bitner's Effective Legal Research.

Other Sources

A citation for a treatise would refer to the volume number (if more than one), the author, title, page, section or paragraph number, edition (if more than one have appeared), and the date the treatise was published. For example, a treatise on the History of English Law would be shown as 1 F. Pollock & F. Maitland. The History of English Law 518 (2d ed. 1898). Citations of legal writings contained in journals and periodicals that are paginated consecutively throughout a volume refer to that volume number, abbreviated title of the periodical or journal, page number and year published, as well as the title of the article and name of the author. For example, a citation for an article appearing in the Harvard Law Review would be shown as Chafee, Equitable Servitudes on Chattles, 41 Har. L. Rev. 945 (1928).

Legal encyclopedias are referred to in citations by volume, abbreviated title of the encyclopedia, subject title, section number, and date printed. For example, a citation referring to contracts in American Jurisprudence 2d would appear as 12 Am. Jur. 2d Contracts $ 15 (1965).