Academic Legal Writing - Eugene Volokh [76]
Still, you should rely on such secondary sources as rarely as possible, because each time you rely on them, you risk inadvertently incorporating their errors or at least their selective quotations. And you particularly should not rely on secondary sources outside the underlying discipline, such as law review articles that cite history books; there, the risk of error is too high.
There's one important exception to this: In some fields, such as legal history or law and economics, the original scholarship is itself published in legal journals. So if you're making a claim about, for instance, the Framers' understanding of the Fourth Amendment (a historical question), citing a law review article may make sense, so long as the cited article is the original historical work, and so long as you read all the historical sources that you plan on citing.
But if you're making a claim about the demographics of the various states shortly after independence, don't cite a law review article for that proposition. Find the history books that the article cites (or, better yet, the sources on which the books rely), and read, quote, and cite them.
3. Newspapers
Newspaper articles often omit critical details, or err in the details they do include. This makes it risky to rely on them.
Most reporters are generalists, who write about subjects on which they aren't expert. They also tend to write under tight deadlines, and with strict word limits. Their work is then edited by editors who often know still less about the subject, and have even less time.
Reporters also rarely check the original sources; instead, they usually rely on some supposed expert's judgment. Moreover, in my experience, reporters rarely check back with the experts to make sure their quotes were accurately transcribed and edited. (One story, for instance, rendered my reference to a “marina operator's right to his property” as a “marina operator's right to hypocrisy.”30)
This unreliability may not be the reporters' fault; they might be doing the best they can, given their deadlines. But the result is that their work is much less reliable than even the imperfectly reliable law review articles, which at least are written by people who are relatively expert, who have time to check their sources, and who know that they must include footnotes that someone will check. Think back on how many errors or important omissions you've seen in newspaper articles about subjects you know, and you'll get a sense of how often newspaper accounts err about all things.
Here, then, are some guidelines.
a. Newspaper accounts of a published case, a statute, or other legal source
Never rely on a newspaper article's account of a published case, a statute, or other legal source. The articles are too often wrong, and it's easy enough for you to check the source yourself.
b. Newspaper accounts of legal documents or academic studies
Don't rely on newspaper descriptions of legal documents—such as complaints, briefs, or unpublished court decisions—or of historical or scientific studies, if the information is at all important to your claim. Instead, get, read, and cite the underlying document or study. Lawyers involved in the case are often good sources of legal documents. And your research librarians might also help you track down both the legal documents and the academic studies.
c. Identifying the original sources by looking at other newspaper articles
If the newspaper doesn't clearly identify the original source, do a Lexis NEWS;CURNWS,ARCNWS or Westlaw ALLNEWSPLUS search for stories that mention the same assertion. Some of the other stories may give more details that can help you track down the original document. For instance, if you did this for the famous claim that Vice President Dan Quayle once told Latin Americans that “I wish I'd studied Latin at school so I could talk to you in your own language,” you'd find that the story was made up as a joke, and then repeated as if it were true.31
d. Contacting quoted speakers
Sometimes the newspaper is the original source, for instance