On August 28, a new law took effect in the state of Missouri, which in part added Mo. Rev. Stat. § 1.016: "A secondary source, including a legal treatise, scholarly publication, textbook, or other explanatory text, does not constitute the law or public policy of this state to the extent its adoption would create, eliminate, expand, or restrict a cause of action, right, or remedy, or to the extent it is inconsistent with, or in conflict with, or otherwise not addressed by, Missouri statutory law or Missouri appellate case law precedent."
Most law students learn that secondary sources do not constitute the actual law of a jurisdiction in their first semester of legal research instruction, so this code section's text may seem strangely obvious. However, it's not the only such law on the books enacted or proposed recently: even North Carolina has one specific to insurance law at N.C. Gen. Stat. § 58-1-2 which took effect last year, and a nearly identical version of that text died in the West Virginia legislature this summer.
Why the sudden rush to codify the status of secondary sources in so many states, particularly for states that focused solely on insurance? These laws all draw their text from a model act developed by the National Council of Insurance Legislators (NCOIL), as a response to the drafting of the American Law Institute's Restatement of the Law, Liability Insurance. Attorneys Lorelie S. Masters and Geoffrey B. Fehling detail the background of this controversy in a 2020 Connecticut Insurance Law Journal article. NCOIL model act drafters expressed concerns that the Restatement would provide "more of an ALI wish list than a statement of the majority rule of current law," and that courts would promptly adopt the Restatement view on various aspects of insurance law. The recent Missouri statute broadened the model act text beyond just the confines of insurance law.
Although state legislatures may continue trying to limit the adoption of secondary sources' text by courts in their jurisdiction, you should never be deterred from consulting them early in your research process! Secondary sources remain a great place to start your research for an overview of your topic and citations to selected relevant primary authority. Some sources to help you begin your project include:
- Encyclopedias are available that cover the law across the United States (American Jurisprudence 2d on Westlaw, Lexis, and the campus-wide Nexis Uni; Corpus Juris Secundum on Westlaw) and individual states (such as Strong's North Carolina Index on Westlaw or in print in the library). Harvard Law School Library's guide to Legal Encyclopedias is a great list of links to available titles.
- Study aid series like Nutshells and Hornbooks can provide a basic introduction to topics in an accessible, one-volume format. The West Academic Study Aid Library features Nutshells, Hornbooks, Concepts & Insights, among many other series; Aspen Learning Library includes Glannon Guides and Examples & Explanations. Additional introductory topical overviews are available in Elgar Advanced Introductions to Law.
- Multi-volume scholarly treatises provide more in-depth analysis about a particular topic. Treatises are available online in Westlaw, Lexis, Bloomberg, and other databases depending upon the publisher. Guides like Georgetown Law Library's Treatise Finders are a great place to locate recommended titles, as is Appendix B of Legal Research in a Nutshell.
- Journal and law review articles can help you focus on a more specific topic in law. Articles from major legal journals and law reviews since the early 1980s can be found in Lexis, Westlaw, and campus-wide databases like LegalTrac and Nexis Uni. The SSRN repository also contains a number of forthcoming articles and unpublished working papers in law, in addition to copies of published articles.
For help with locating relevant secondary sources on a topic, or learning more about model legislation like NCOIL's, be sure to Ask a Librarian.
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