6.1 Primary vs Secondary Sources; Mandatory vs Persuasive

The Paralegal CORE Competency Exam (PCCE) tests legal research as a classification and workflow skill. You will not log into a live computer-assisted legal research (CALR) terminal in the Prometric room. You will be asked whether a named book, database, or opinion is primary or secondary, and whether it is mandatory (binding) or only persuasive in the court that will decide the client’s problem. Mix those two axes and you will pick the attractive wrong answer: treating American Jurisprudence, Second Edition (Am. Jur. 2d) as if it were a statute, or treating a New York opinion as if a Texas trial judge had to follow it.

Primary sources: the law itself

A primary source is the law. A government body with authority to make law issued it. The exam’s working list is:

• Constitutions — the United States Constitution and each state’s constitution, plus amendments adopted through the jurisdiction’s prescribed process
• Statutes — acts of Congress and of state legislatures, both as originally enacted and as later codified in a subject-matter code
• Regulations (administrative rules) — rules an agency adopts under a statute that delegates rulemaking power; federal examples live in the Code of Federal Regulations (CFR)
• Case law — judicial opinions, especially published opinions that a jurisdiction treats as precedent under stare decisis
• Treaties — international agreements that have domestic legal force once the Constitution’s process (and any implementing statute) is complete
• Court rules — including the Federal Rules of Civil Procedure (FRCP), the Federal Rules of Evidence (FRE), the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, and counterpart state rules of court

If the source is the rule a judge applies, it is primary. A section of the United States Code (U.S.C.), a CFR part, a state supreme court opinion, a ratified treaty that is self-executing or implemented, and Federal Rule of Civil Procedure 12(b)(6) are all primary.

Primary is not a synonym for mandatory. A California Court of Appeal opinion is primary law. It binds California trial courts in that appellate district on the point decided. It is only persuasive in a Texas trial court. Train yourself to ask two separate questions on every PCCE stem: (1) Is this the law, or is it writing about the law? (2) Must this court follow it?

Municipal ordinances, interstate compacts that have been given legal effect, and some executive orders can also be primary in the narrow setting they govern. The exam still wants the six-family list above as your first cut.

Secondary sources: writing about the law

A secondary source explains, organizes, criticizes, or restates the law. It is not enacted and not a judicial holding. Memorize the families the Domain 1 blueprint names:

Secondary sources are a starting point, not a substitute for the law. You open Am. Jur. 2d, C.J.S., or an ALR annotation to learn the vocabulary, to see majority and minority rules, and to harvest citations. You then read the primary authorities those sources point to, and you update those authorities with a citator. A memo that quotes only C.J.S. has given the attorney an encyclopedia, not a holding. A brief that cites only a law-review student note has given the court a student note.

Courts sometimes adopt a Restatement section as the state’s common-law rule. After that happens, what binds later courts is the adopting opinion and the state’s own cases applying it. The ALI volume on the shelf does not become a statute. Pattern jury instructions and form books are the same idea: useful, sometimes quoted, almost never independently mandatory.

Mandatory versus persuasive authority

Mandatory authority (also called binding authority) is a primary source the deciding court must follow on the same legal issue when the material facts are not distinguishable. Persuasive authority is anything the court may consider and may reject. Stare decisis is the doctrine that a court follows its own prior holdings and the holdings of courts that sit above it. The holding — the rule necessary to the judgment — is what binds. Obiter dictum (a remark not necessary to the result), a dissent, and a concurrence are not holdings.

State trial court (state-law claim)

Imagine a Texas district court deciding a Texas negligence claim:

• Mandatory: the U.S. Constitution and controlling U.S. Supreme Court decisions on any federal issue actually presented; the Texas constitution; Texas statutes and valid Texas regulations; Texas Supreme Court decisions; published decisions of the Texas intermediate appellate court for that district on questions that court has decided
• Persuasive: other Texas courts of appeals; other states’ high courts; federal opinions interpreting Texas law; Restatements; treatises; law reviews; dicta; dissents

If the Texas Supreme Court has spoken, an older court-of-appeals case to the contrary is no longer the rule, even if it is still printed in the regional reporter. If only another Texas court of appeals has spoken, many Texas trial judges treat that decision as highly persuasive; it is still not automatically mandatory outside that district. The PCCE cares that you can name the difference.

Federal district court (federal question)

Imagine a federal district court in the Fifth Circuit deciding a federal statutory claim:

• Mandatory: the U.S. Constitution; federal statutes and valid federal regulations; the U.S. Supreme Court; published Fifth Circuit decisions
• Persuasive: other circuits; other district-court opinions (a district opinion binds the parties through law of the case or preclusion, but it does not bind the next district judge as precedent); Restatements and commentary

In a diversity case, the federal court applies state substantive law. If the state’s high court has spoken, that decision is the rule the federal court must follow on the state-law issue. If the high court has not spoken, the federal court predicts what that court would do; a sister-state case and a Restatement become persuasive tools for that prediction. The federal court does not get to invent a “better” state rule because a law review prefers it.

Federal Rule of Appellate Procedure 32.1 permits citation of federal unpublished decisions issued on or after January 1, 2007, but permission to cite is not mandatory force. A nonprecedential opinion does not bind a later panel the way a published opinion does. Check the circuit’s local rule on weight. “Unpublished, therefore useless” is too crude; “unpublished, therefore binding nationwide” is false.

Restatements and out-of-jurisdiction cases

Two designed traps:

1. The Restatement trap. A partner says “Restatement (Second) of Torts section 402A is the law of products liability.” It is the law only where a high court has adopted that section, and only as modified. Until adoption, the section is secondary and persuasive. After adoption, cite the adopting case and later state cases. Do not treat the ALI as a legislature.
2. The out-of-jurisdiction trap. A careful New York Court of Appeals contract opinion is primary (it is case law) and persuasive only in an Arizona trial court. Similarity of statutes and a silent home jurisdiction make it more persuasive. Elegant writing, a famous caption, or a partner who “likes New York commercial law” does not make it mandatory.

A third trap sits next to those two: secondary sources that quote primary sources. Am. Jur. 2d may reprint a statute. ALR may quote a holding. The quotation does not convert the encyclopedia or the annotation into primary law. Pull the statute. Pull the case.

Worked office path

A partner asks for “the law” on whether a text message can accept an offer in the state of filing. Start with a secondary source — the state contracts treatise or an ALR annotation on electronic acceptance — to frame the issue and collect citations. Pull the state’s uniform electronic-transactions statute (primary; likely mandatory). Pull the state supreme court and intermediate appellate cases, and check which appellate district you are in. Run Shepard’s or KeyCite. If the state is silent, add a neighboring high-court case and the Restatement (Second) of Contracts section on acceptance, labeled as persuasive. Never write that Am. Jur. 2d “holds” a result, and never tell the client the Restatement “is the statute.”