Chapter 5: Non-traditional Secondary Sources

5.1 Introduction to Non-traditional Secondary Sources

One key feature of non-traditional secondary sources is that there is usually little to no pre-publication editing or vetting. Thus, the publication timeline for a non-traditional source is much shorter, making these sources agile and responsive to developments in the law such as a ground-breaking court decision. This permits authors to offer commentary quickly on important legal developments — sometimes on the very day they occur. A traditional source that provides commentary on the same case is unlikely to be published until perhaps weeks or even months after the case is decided. However, since non-traditional secondary sources are almost entirely disintermediated — lacking the strict editorial oversight that is the hallmark of traditional sources — the quality, reliability and accuracy of non-traditional sources is an issue. They may also be considered less authoritative than traditional secondary sources. As a researcher, it is essential that you assess their credibility and accuracy carefully.

Non-traditional secondary sources are published in an ever-expanding variety of formats and are usually located and accessed using a web browser. Most share similarities in terms of strengths, like timeliness and flexibility/agility in responding to developments in the law, and weaknesses, such as a huge variation in quality depending on the source. Later on in this chapter, we’ll talk about critically assessing non-traditional secondary sources, which will ensure that you are considering limitations when using one of these (or other) types of resources in your legal research.

5.2 Blogs

A blog is a free online resource that publishes shortform entries on a specific subject and with some degree of regularity. Blogs are often associated with an organization or run by a small group of individuals who share a common interest, often with the goal of establishing expertise in a field, selling a product or service, and/or raising awareness on a particular topic.

Blogs are often an early source of information on a breaking news topic, falling behind only social media and mainstream news sources in the timeline of how quickly information emerges online. They are also relatively easy to locate because Google indexes them very effectively and many organizations use search engine optimization (SEO) strategies to raise their blog’s profile (and ranking) in your results list.

But blogs also share many of the familiar weaknesses of non-traditional secondary sources. Even legal blogs may have few to no quality control measures involved in the publication process (including fact checking and basic editing). Authorship can also be challenging to determine; some blogs may not even have individual authors associated with particular posts, instead posting under an organizational author. This can make it extremely difficult to determine the reliability and expertise underlying the information and makes the critical assessment of a blog an extremely important part of the process.

There are many Canadian legal blogs. Lawblogs is one available resource to help you identify relevant blogs in your subject area via their open directory of Canadian law blogs. An accompanying tool is Slaw’s custom Google search engine, which allows you to search across all the law blogs in its directory simultaneously.

5.3 Law Firm Updates and Newsletters

Law firms will often publish information online in areas that they specialize in, as a way of establishing expertise in that area of law, gaining a reputation, and attracting potential clients. These types of resources have various names, including “client updates”, “insights”, or “newsletters” and may appear in email blasts, a blog, or even print. They are often framed as providing current information about emerging developments in the law, such as summaries and analyses of recent decisions handed down by the courts or legislative amendments that are undergoing consideration or coming into force. The listed author(s) are usually practitioners in the area of law that is the focus of the article.

These updates share some of the strengths of a blog (currency and findability), but their status is also bolstered because of their affiliation with a law firm with an accompanying greater expectation of accuracy and credibility. Of course, as with blogs, this can vary significantly between firms and authors. Don’t forget that any firm can start an online newsletter, and that one of the goals of the medium is to sell their services (which represents a bias) — to prove their ongoing value to existing clients, to recruit new ones, and to more generally establish expertise in the field.

There are a handful of specialized tools for locating information published online specifically by Canadian law firms:

Fee Fie Foe Firm Canada is a search engine that has been customized to only search Canadian law firm websites. It is also available for other select jurisdictions.

Lexology and Mondaq are two international syndication services that aggregate law firm content by topic or region. Sign up for a free account to search or browse content by subject or jurisdiction. Note that in-site searching on Mondaq is clunky, so this content is best searched via a Google site search using the form site:www.mondaq.com/canada followed by keywords to retrieve Canadian articles (see General tips).

5.4 Podcasts

A podcast is an audio program that is released in episodic format and can be downloaded or streamed online. Legal podcasts are sometimes published by an organization (e.g. a bar association, law firm, or law school) but can also be published by an individual. All of the above caveats about non-traditional secondary sources apply here: use caution, investigate the source, and critically assess before moving forward with a podcast as a source.

Locating podcasts on law topics can be a challenge. Lawblogs offers a list of Canadian law Podcasts & Vlogs, but note when searching that podcasts vary greatly in terms of what information accompanies each released episode. You’ll have to identify first which podcasts to focus on and then either use that podcast’s website to browse or search, or run a Google site: search to see if your keywords appear in any of the episode titles or descriptions (see General tips).

5.5 Social Media

Social networking platforms like X (formerly Twitter), Facebook, LinkedIn, Instagram, and TikTok are used by legal professionals for many purposes, including to spread information about developing events or to promote expertise on a given topic. Social media is also very useful as a source of information about personal opinions or breaking news such as parliamentary activity, press conferences, or announcements.

As a source for legal commentary, social media has some limited uses. While it is unlikely that you would cite a social media post in most formal legal writing, social media platforms are important hubs for professional and other communities that may be relevant to your research. Finding those communities and identifying the experts within them can be a useful strategy to pair with more traditional information-seeking strategies. For instance, experts who are active on social media may hyperlink to other secondary sources that they have created, such as blog posts, articles, or even books.

Consider also the utility of a crowdsourced taxonomy: the hashtag. Hashtags are a modern type of subject classification that can be used to immediately identify individuals or organizations who are posting on and responding to a given topic. They may also be used to identify information emanating from or of interest to a particular subset of users (e.g. #medtwitter for doctors, #sciencetwitter for scientists). Since these subject classifications are user-generated, they often reflect more current language and topics than a more traditional taxonomy that is controlled by a publisher. But it can also be tricky to guess the wording of a hashtag without first being exposed to or involved in the group that is using it. It’s often better to chain your research by starting with a known account (individual or organizational) then following associated hashtags, follows, and followers to identify additional accounts. Always be wary of how easy it is for someone to fake credibility on social media. Critical assessment is a crucial step!

Strategies for researching on social media can differ widely between platforms. Many social media sites are indexed to some degree by Google, which means that you can leverage the search engine as a starting point. But there are often limitations to this indexing. Private pages will not show up in a Google search, for example, and video content may be difficult to surface since you are often relying on the user’s application of hashtags.

5.6 AI-generated Sources

A newer frontier is the emerging technology that allows artificial intelligence to generate text or “answers” to a legal question. Consider ChatGPT, the generative pretrained transformer (GPT) technology created by OpenAI, which has been lauded as a massive breakthrough for its ability to provide human-like responses to questions. AI-generated sources are also gradually emerging in our most-used legal research services, Westlaw and Lexis. Though more of these tools exist only in the American versions of these platforms, a handful of generative AI chatbots have popped up in the Canadian space including Jurisage’s “chat with a case” tool and Codify’s “talk to legislation” tool. This technological space is moving quickly, and Lexis and Westlaw generative AI integrations are imminent in Canada.

Do AI-generated texts truly count as “secondary sources”? While they verge on the edge of this category, for now the technology does not seem to meet the two main requirements of secondary sources, which provide commentary on the law and point the reader towards relevant primary sources. Since AI generates information based on patterns in a dataset, it is difficult to consider AI-generated text on the law to be much in the way “commentary”, even if AI ever perfects the ability to explain existing law (and we’re not there yet). Tools like Lexis Answers may be better at providing the second function of pointing the reader towards primary sources, since the main use of the tool is to extract “answers” from case law and other sources. But this type of technology places more of the analytical burden on the user compared to a traditional secondary source. The researcher must determine the relative authority of the excerpts themselves; Lexis makes no promises with regards to the thoroughness of the tool or its ability to surface leading case law. Even worse, more mainstream AI systems (like the GPT technology behind ChatGPT) are notoriously unreliable for source identification and will make up citations to articles, case law, and other sources.

In general, currency in AI-generated secondary sources can be challenging to judge. Remember that an AI-driven system generates text (or other outputs) based on an underlying dataset (like a database of cases or web-scraped data). So the currency of that output (in this case the generated text) depends on the currency of that underlying dataset. In some cases, that may be identical to the currency information for the database in which you find the tool, especially if it is embedded in a service like Westlaw or Lexis. But in other cases the output may be outdated by days, months, or even years (as with ChatGPT).

Certainly, these AI tools are not yet at the stage where a researcher would want to rely on them as standalone sources.^[1] GPT technology can provide a fun starting point for research by allowing the researcher to probe a topic in a conversational setting, but any facts, analysis, or sources discovered via this technology should be carefully verified. Tools like Lexis Answers may be another venue for discovering case law but should not be assumed to provide a comprehensive list of case law and should be supplemented with additional research.

These are only two examples of AI-generated sources. Since it is certain that new tools will continue to emerge, remember the overarching principles discussed in Chapter 1 when leveraging any type of AI-driven secondary source in your research.

5.7 General Tips for Locating Non-traditional Secondary Sources

Non-traditional secondary sources can be both incredible easy and incredibly difficult to find online. This is because of the limitations of online search engines described in Chapter 1. Google can easily retrieve a source on a given topic, but it can be surprisingly difficult to add criteria to a search such as author must be a lawyer. This is why the specialized search tools noted above for different types of sources are key finding tools.

More generally, there are ways to force a search engine to return more relevant results. Since every search engine is different (and information about how it retrieves results is usually proprietary and not public), the search results that float to the top of your results list can appear haphazard. And almost any search can return thousands of results. Without a clear search strategy, simply googling for legal information can be time consuming and distracting, since it may not yield reliable and current information.

Every search engine is different, but we’ll use Google as an example since it is the most used. Google has a lesser-known Advanced Search form that allows you to be more precise in your criteria. If you’re retrieving irrelevant results through Google, consider which connectors available on that form will allow you to be more precise. For example, consider using quotation marks to specify a phrase (“wrongful dismissal”) and prevent Google from retrieving all instances of wrongful and of dismissal; or consider using the minus sign to exclude a term from your results (e.g. automatism -intoxication). These simple adjustments can save time and improve your efficiency.

One of the most useful — and consistent — options is the site: operator, which you can also use from the main Google search bar. Site: allows you to specify the website (e.g. site:queensu.ca) or domain (e.g. site:.ca for Canadian websites or site:.edu for U.S. post-secondary institutions) in combination with other keywords. Your results list will then include only webpages from that site/domain that include your keywords. Use this after you’ve identified a website that looks potentially useful — perhaps a legal blog that is run by an expert in the field, or a podcast that deals primarily with the area of law you are researching. Then use the first part of the URL (the site or domain indicator portion) in your search along with the keywords you are looking for. For example, if you were looking for commentary on bill C-11 from Michael Geist’s well-known copyright blog, you could search:

Site is a particularly useful feature for locating non-traditional secondary sources when you’ve already done the leg work of identifying experts who publish in non-traditional formats online. You can also use this strategy for social media sites (site:BlueSky.com “bill c-11”), especially if their internal site search does not allow for particularly sophisticated searching.

Another key issue with locating non-traditional secondary sources is link rot, which refers to the tendency for links to break over time due to changes in website URLs or the removal of content. Link rot is a major problem for information-seeking strategies that depend on following references in other sources. For instance, if you are reading an article from a law journal that cites a blog, the link provided in the citation may no longer lead to that article. In these cases, you may still be able to retrieve an archived or cached version of a webpage. For example, you can use the Google prefix cache: in front of the URL to retrieve a snapshot of the page when Google last crawled it. You can also use the Wayback Machine internet archive to enter the URL and retrieve an archived version of the website. Lastly, if the webpage has been cited in a more scholarly format (such as a law review), the editors of that publication may have archived the source using a tool called Perma.cc. If you can track down a citation that includes a Perma.cc link, you may be able to read the source. Unfortunately, though, not all pages are archived using any of these methods, and it is very possible that the page may have disappeared completely from the internet.

5.8 Critically Assessing Non-traditional Secondary Sources

The ease with which non-traditional secondary sources can be retrieved online means you probably won’t have any trouble finding at least something that is relevant to your research task. However, while quantity may not be an issue, the question of quality always is. Once you’ve identified a non-traditional secondary source, you need to critically assess it before you rely on it in your research and analysis. You may have an initial impression of a source based on a quick glance, but even those that appear professional may not be appropriate for use in your research. Further investigation is almost always necessary.

This crucial investigative step is often called source evaluation or critical assessment. We can liken it to the noting-up process we use to ensure that the primary sources of law we seek to rely on — cases and legislation — are still “good law”. Looking critically at a source is a skill that takes practice. It is also a skill that requires you to be somewhat flexible — the way you evaluate a source may be slightly different depending on the nature of your research question and the nature of the source itself.

With traditional secondary sources, especially those that have a long and complex vetting process prior to publication, there is good reason to believe that the source contains reliable and accurate information. Non-traditional secondary sources, however, require systematic critical assessment before you can comfortably rely on them in your analysis. This is because, compared to more traditional formats like books, there are usually fewer quality controls involved in making information available online. As a result, online sources can easily contain incorrect, biased, outdated, or misleading information. They come to you directly from the author with no editorial “middleman” involved; in other words, they are almost entirely disintermediated.

Critical assessment might also be warranted if the source you are using is a non-legal source. It’s common for legal researchers to draw on information from other disciplines (for example, social science journal articles). While such sources tend to be vetted, they may be authored by people with little to no legal training and created using methodological frameworks quite different from the legal reasoning framework you’re familiar with. As a result, they might require careful critical assessment, especially in relation to any empirical conclusions reached, prior to use in a legal context.

Regardless of whether you are using traditional or non-traditional secondary sources, some degree of critical assessment of the source and its authorship is a research best practice. In critically assessing secondary sources, we consider a range of dimensions similar to those considered for primary sources. Ultimately, our goal is to determine whether we can rely on the source — whether it is authoritative on the topic of interest to us. The following criteria — the elements that construct authority, the issue of bias, and the currency of the source — should be used when evaluating a source in legal research.

5.8.1 Authority

In a common law jurisdiction, both case law and legislation constitute “the law” and so are inherently authoritative within the limits of jurisdiction, and subject to the results of the noting-up process described above. Secondary sources, by contrast, have no force and effect as law, and they don’t “give” the law. Thus, they are not inherently authoritative.^[2] Rather, the authority of secondary sources, whether traditional or non-traditional, is derived from characteristics of authorship, accuracy, audience and purpose, and jurisdiction. The following questions can be used to assess these characteristics:

Authorship

• What are the author’s credentials? Is the author recognized as an expert in this area of law?
• Is the author affiliated with an institution or organization that is known for special expertise in this area of law?
• Has the author published elsewhere on this topic?

Accuracy

• Is the source vetted for accuracy prior to publication, as in a peer-reviewed journal article?
• Are citations provided in support of factual assertions, commentary, or other content? Are case law and legislation referenced? Is information verifiable?
• Is there any form of intervening editorial process (intermediation) between the author and the consumer of the information that will help to ensure accuracy?
• Is the source one which is updated regularly with regard to developments in the law?

Audience and Purpose

• Is the source intended for an audience with legal expertise? Or is it intended for a lay audience?
• Is the purpose to describe the law (like a treatise)? to evolve the law (like a scholarly journal article)? to educate the public (like legal clinic pamphlets)? to advocate a position (like a blog piece or a newspaper editorial)? to inform clients (a law firm web site or newsletter)? To comment on the law as it is made (like social media commentary)?
• Is it simply speculative, or an opinion piece?

Jurisdiction

• Does the jurisdiction of the publication, or the law discussed, align with the jurisdiction of the problem you are researching?
• Are there separate volumes or parts of commentary for different jurisdictions (as is the case for a legal encyclopedia)?

Credibility/Subsequent Treatment

• To what extent has the source been cited with approval by the courts, in legislative debates, or by other scholars or commentators?

5.8.2 Bias

To assess bias, ask whether the author or source is known to favour one perspective on a given legal issue, or if they have a clear “agenda” or goal. A clear bias expressed by an author, or inherent in the source’s affiliation or practice area, does not automatically mean a source must be discarded. It does, however, require that you account for this in assessing the utility of the resource. For example, if you are reading a blog post about a recent labour law decision, consider to what extent the author’s perspective is influenced by her firm’s representation of management-side clients and integrate this into your assessment of the source for your own analysis.

Also consider your own bias on a legal issue. You may find resources that express your own or your client’s position perfectly. You must, however, remain objective and systematic in your research. You will still need to critically assess the source, and moreover, you should determine whether there are counterarguments or alternative positions expressed in other sources. In this way, you’ll ensure that your legal analysis is thorough and well-founded.

5.8.3 Currency

Check whether you have the most recent edition of the source, or whether some aspects of the commentary might be out of date. In some cases, it is simply a matter of looking at the date of the blog post or newsletter. Some sources are updated regularly. For example, you can tell how recently the article you’ve been looking at in the CED has been updated by the currency information at the top of the screen. Similarly, a looseleaf volume, like an annotated act, will indicate how recently update pages have been published.

You might also ask how permanent or persistent the source is. For example, if it is a website, does it have a persistent URL? If it’s a publication like a journal or periodical, does it have a long history of uninterrupted publication?

5.9 Maintaining Current Awareness: Monitoring non-traditional secondary sources

Non-traditional secondary sources are well-suited to monitoring because they are usually born-digital formats. But beware — resources like blogs and socials can contain outdated information just as easily as a journal article or book. You’ll need to actively monitor those resources in order to maintain a state of current awareness.

In most cases, you will monitor non-traditional sources by subscribing to or otherwise setting up alerts directly from that source’s website, social media page, or other online access point. These access points are differentiated by source type but are generally familiar to us as internet users — subscribing to a podcast through an app, to a blog through an email newsletter, to a social media account through a “follow”, and so on. The basic workflow is to first identify a useful source and then actively subscribe to its updates through whatever means are possible and work well for your needs.

One monitoring strategy worth mentioning is law firm updates. There are several websites that aggregate law firm updates from across the internet (e.g. Mondaq and Lexology). This is often a more useful monitoring technique than subscribing to every individual law firm’s bulletin, unless there is one particular law firm that consistently posts content relevant to your practice area.

Lastly, ensure that you leverage any non-traditional sources that are available to you through the legal research services. Depending on the service and your subscription, you may have access to various newsletters, blog posts (e.g. via CanLII Connects), and legal magazines or news sources (e.g. on Westlaw and Lexis). Use the browsing technique to explore what current awareness options your subscriptions provide access to and, where possible, set up alerts within the service for relevant publications or subject searches.