Click here for an outline of Thinking like a Lawyer by Fredrick Schauer for a more comprehensive discussion on legal secondary sources.
I love secondary sources. As many of my friends in law school know/remember, I was borderline obsessed with hornbooks, treatises, and supplements–as an earlier post my reveal–during my first year in law school. Thus, to no surprise, I have not been gun-shy about grasping for a treatise when looking for a citation. And with my very own Law Review Comment finding its way in the United States Supreme Court and California Supreme Court Briefings, I’ve started to really think about the value of citing secondary authorities.
Now, we all remember from our first year of legal writing that secondary sources are low on the totem pole of authority, being merely persuasive, and less persuasive than out-of-circuit opinions and other non-binding sources. But can it be true that all treatises, law review articles, and practice guides are created equal? Or is their a pecking order within secondary sources? Should we rely on the persuasiveness of the reasoning? Or the learnedness of the source? I’ve run across some interesting perspectives on secondary sources that address these issues.
First, it’s worth noting that many times the value of a secondary source doesn’t come from its content, but from the sheer fact that the proposition you are supporting is more plausible because someone has said it before. As Fredrick Schauer (Thinking like a Lawyer), a professor at Virginia School of Law, explains, the judge is persuaded “not so much by the expert’s reasons as by the (judge’s inexpert evaluation of the) expert’s expertise.” In other words, the judge merely looks at this source as a confirmation of the fact that the source is more likely right than the judge would be if she made her own decision. The more expert the individual relied upon, the better, especially when it has become common practice for lawyers to rely on a certain treatise—think Rutter Guide in California.
Bryan Garner and Antonin Scalia in “Making Your Case: The Art of Persuading Judges” also agree with the notion that form is more important than substance when it comes to citing secondary sources. They state: Judges will “be persuaded not by the reasoning of your secondary authority but only by the fact that its author agrees with you.” They also advise writers to cite authors most eminent in their respective field, as “the force of the persuasion will vary directly with the prominence of the author.” Garner and Scalia also proceed to derogate the citation of student comments—like my own—unless they are cited because the student comment provides a collection of cases in the applicable area of law.
In sum, there is value in secondary authorities, but intensive focus on the reasoning of that authority or an all-out-search for the perfect proposition stated with the utmost eloquence and absolute coherence is unnecessary; if the author agrees with your conclusion or proposition, that is enough. Professor Schauer instructs that this reflects the law’s intrinsic conservatism, in the non-political sense of the word, and is consistent wit the authoritative character of the law itself. But theory aside, the overall point is clear: it is its very existence that gives a secondary source its value, i.e., the fact that someone has made the same argument before, not its substantive reasoning.
And as a cautionary, no matter how learned the author of the treatise is, or how well-regarded it is by the Supreme Court, Garner and Scalia state that “It’s superfluous—and hence harmful—to cite a secondary authority for a proposition clearly established by governing authority.”