Paralegal Certification PrepLegal Research and WritingMedium
A paralegal is conducting research on a novel legal issue for which there is no direct statutory or precedential authority in the controlling jurisdiction. To develop a well-reasoned argument, the paralegal decides to look for persuasive authority. Which of the following sources would be considered the most persuasive secondary authority in this scenario?
- AA recent law review article authored by a leading scholar in the field.
- BAn opinion from a trial court in a different state with similar facts.
- CA treatise chapter on general legal principles related to the issue.
- DA blog post by a practicing attorney discussing the issue.
Show answer & explanationAnswer & explanation
Correct answer: A. A recent law review article authored by a leading scholar in the field.
Law review articles by respected scholars are highly valued as persuasive secondary authority, especially for novel issues, because they offer in-depth analysis, propose solutions, and synthesize existing legal principles. While other options might offer some insight, a scholarly article's depth and authority make it most persuasive.
Why the other options are wrong
- B. An opinion from a trial court in a different state is primary authority, but it's not controlling and generally less persuasive than appellate decisions or scholarly secondary sources for a novel issue.
- C. A treatise provides a comprehensive overview, but a specific law review article often delves deeper into novel or evolving areas of law, offering more direct persuasive power in such a scenario.
- D. A blog post, while potentially informative, typically lacks the rigorous peer review, depth, and scholarly authority of a law review article, making it less persuasive.
Persuasive Secondary Authority
Legal commentary or analysis that, while not binding on a court, can influence a court's decision by providing well-reasoned arguments, background information, and interpretations of law.
- Used when primary authority is absent or unclear.
- Includes law review articles, treaties, restatements.
- Value depends on author's reputation and depth of analysis.
Memory trick: Scholars shine brightest when direct law is out of sight.