Learning objectives

By the end of this module, you will be able:

• recognise different forms of secondary literature
• distinguish between academic and non-academic forms of secondary literature.

Secondary literature is the mass of published materials that interpret, evaluate, or analyze the evidence derived from primary sources. Such materials are at least one step removed from their subject. These sources take a wide range of forms, including:

• academic books
• journal articles
• biographies
• annotations or commentaries on primary sources such as cases or legislation
• textbooks
• articles in newspapers and magazines.

Secondary sources are useful in that they provide a starting point for your analysis. If you are unfamiliar with a particular area of law, secondary sources will assist you to learn the terminology, main issues, important cases and crucial pieces of legislation..

When researching a wider topic, such as a social issue, the use of secondary sources is essential. Any "common-sense" ideas that you might have about a theme, such as urban homelessness or drug addiction, will probably seem naive to specialists.

Although secondary sources are usually a good introduction, they are usually not enough on their own. When we read secondary sources, we are viewing events through an additional series of filters. Any secondary account is shaped by the author's interpretations, bias, preconceptions and misunderstandings. Although secondary sources appear to deal in "facts", much of what any secondary source contains is actually interpretation.

The quality of secondary sources varies enormously. Some categories of secondary sources, such textbooks written for undergraduates or popular magazine articles, are not regarded as particularly authoritative or reliable.

Determining the reliability of secondary sources

Specific categories of secondary sources are accorded greater persuasive force and should form the basis of your research. Many of these can also be cited as a legal authority. These categories include:

• peer-reviewed journal articles
• law review articles written by established scholars
• specialised encyclopedias and reference works
• monographs written by recognised experts and published by academic publishers.

Peer-reviewed journals

When a researcher intends to publish in an academic journal, he or she will send an article to the journal editor. If the editor thinks that the article is suitable for the journal, it will be sent to two or more reviewers. These reviewers, who are usually experts in the relevant field, will read the article to assess its quality in terms of methodology, originality, significance and clarity. The reviewers' comments then go back to the researcher, who is usually required to make improvements before the article is published. The same process occurs when a paper is submitted to an editorial board before it is read to an academic audience at a conference.

An article or paper that passes peer-review is not necessarily correct. The process of checking does not end with publication. Instead, publication is the beginning of the process of review through which promising research is exposed to the critical attention of the wider academic community.

Identifying peer reviewed journals This Adobe Acrobat document provides advice on distinguishing academic and non-academic journals.

Why do researchers prefer peer-reviewed research?

Peer-review ensures minimum standards. It gives authors the benefit of expert advice and is intended to weed out poor research or obvious attempts at academic fraud. Another benefit is indirect. Because authors know that their article will receive critical review, they will make every effort to anticipate objections and to produce the best possible research. Where an article or a conference paper is not subject to peer-review, these checks are absent.

Law reviews

Law reviews are a special form of academic publishing. Peer review is usually absent and the editors are generally law students. As a result, the status of article in law reviews depends on a range of factors. If an article is written by a recognised expert and published in a premier law review, it may well be regarded as a persuasive authority by the courts. Comments, articles or case notes written by students are unlikely to be persuasive, irrespective of their intrinsic merits.

What is a law review?

Law reviews are typically academic journals edited by the law school students. Almost every law school in the United States publishes at least one law review, and most law schools have several. Law reviews have their origins in the late nineteenth century. The first student-edited legal periodical was the Harvard Law Review, which began in 1887. The Harvard Law Review proved so successful that other law schools launched imitators. Within a few decades, the law review was an established part of the legal landscape in the United States. Law reviews played a crucial role in American law during the much of the twentieth century. They provided legal professionals with easily accessible information on the law, and shaped the development of jurisprudence. Even the United States Supreme Court cited articles from law reviews as persuasive authorities, and continues to do so. There are now hundreds of law reviews in the United States alone, and a growing number in other common-law countries such as Australia and Canada.

Despite this success, the influence of law reviews on the courts has diminishing in recent decades. Part of the reason is that sources such as Westlaw and LexisNexis allow judges to go straight to the case law and legislation themselves. Another factor is changing trends in the content of law reviews, including increasing emphasis on cross-disciplinary analysis. As articles move beyond a narrow focus on legislation and precedents, they will inevitably forfeit some relevance to court decisions.

Books and book chapters

Most text books would not be regarded as persuasive authority by the courts. There are some exceptions. If a text is written by a outstanding scholar, it might subsequently be recognised as persuasive. Texts written by sitting judges, especially by judges sitting on the bench of an appelate court, are also likely to be given greater weight.

In evaluating a book or book chapter, consider a number of points:

• Why was it written? Is it intended as a basic introduction (in which, case there is a danger that some information may be over-simplified) or as a comprehensive summary of the law at the time of publication. Is it intended to simply inform, or to persuade? If the latter, you need to watch out for signs that objectivity has suffered in pursuit of the author's argument.
• What is the reputation of the author? Is the author an academic? If so, at what university? What qualifications does the author hold? What else has he or she written? Have his or her articles been published in peer-reviewed journals? Are the author's books held by academic libraries (you can search Libraries Australia to discover this). Is the author considered an expert in his or her field
• What is the reception of the work? If it is book or book chapter, has the book been reviewed in peer-reviewed journals? If so, were the reviews favourable? If it is an article, has it been cited favourably in subsequent articles or books.
• What has been the judicial impact of the work? Has a work been favourably cited in the courts?. This is easier to discover than you may think. For example, you can use a source such as AustLII to search for the full-text of court decisions.

Indexes of secondary literature

Most indexes concentrate on journal content. These are discussed in the module on Law journal databases. There are also a few specialised indexes that cover non-journal literature.

• Legal Essays Index. The Davis Library at the University of Auckland provides a free index of legal essays published in non-journal formats. These include: essay collections, book chapters, conference proceeding and article compilation dedicated to a particular theme.
• Index to Common Law Festschriften. This is a free searchable index covering some 270 Festschriften on the common law and related subjects, totalling 4,500 chapter entries. In addition, the index includes English-language contributions to predominantly foreign language, non-common law Festschriften from Europe. Festschriften are collections of academic articles by colleagues and admirers written as a tribute or memorial to a noted scholar. This is also provided by the University of Auckland.

There are also specialised bibliographies in many areas of law. Although these can be useful when dealing with the older literature, they are largely out-of-date in relation to modern research. Searching an electronic database is much less time consuming than poring over a bibliography.

Reference Works

Specialised reference works are discussed elsewhere in relation to specific topics. There are also a range of free reference works on the Web. These are often of little value. The 1911 edition of Encyclopedia Britannica is an example. Although available in many versions, this source has long been superseded by more recent editions of the Britannica and other encyclopedias. Moreover, some online versions of this encyclopedia include scanning errors and other obvious mistakes.

Wikipedia Wikipedia is a free online encyclopedia which has been available since 2001. The English-language version includes more than 1.4 million articles. Anyone can contribute. No professional qualification or particular expertise is required. Not surprisingly, Wikipedia has been a source of controversy. Critics assert that articles are uneven in quality and often unreliable. Supporters of Wikipedia have pointed to a comparison between Wikipedia and Encyclopædia Britannica published by Nature in 2005. Although this study found that Wikipedia was less reliable than Encyclopedia Britannica, the difference in terms of quality was not great. A particular strength of Wikipedia is that it contains articles relating to modern life and popular culture. This strength in terms of popular culture has made Wikipedia attractive to judges and advocates who require a reference point in dealing with modern sub-cultures or specialised topics. In 2007, the New York Times reported that hundreds of United States courts have cited Wikipedia in footnotes or as a source of definitions. The United States Supreme Court has so far resisted the trend. Despite this, Wikipedia needs to be treated with caution. The authors of individual articles range from well-informed to the eccentric. Wikipedia should never be cited as an authority on a point of law. To demonstrate this point, search Wikipedia for information on a legal topic with which you are familiar. Can you see any errors or omissions in Wikipedia's treatment?

Review articles

Review articles are a particularly useful form of a secondary source. They provide an overview of the latest research that has been carried out in a particular area of study. They are extremely useful starting point when you are investigating a non-legal field as part of cross-disciplinary research.

You can find review articles quickly using Google Scholar. One trick is to enter a keyword phrase in the Google Scholar search box and add the words review article in quotation marks.

Finding review articles To demonstrate finding review articles in a Google Scholar search, enter the search: "aboriginal customary law" "review article" and click on the Search button. How many review articles did you find on the topic? If you are interested, try other examples of this techique.

Summary

This module dealt with the following:

• different types of secondary literature
• the distinction between academic and non-academic forms of secondary literature.