Chapter 8
Because I Said So: The Categories of Legal Authority
IN THIS CHAPTER
Reviewing the importance of following precedent
Grasping the principles of primary and secondary authority
Discerning the difference between mandatory and persuasive authority
Understanding the importance — and dangers — of nonauthority
Legal authority consists of any recorded source of material that states the law. According to the concept of stare decisis, legal authority is something the court may or must use in reaching its decision. There are two main categories of legal authority: primary and secondary. And, legal authority is further divided into mandatory and persuasive authority. Even nonauthority serves its purpose for the paralegal, legal researcher, and attorney as a case and statute finder.
Legal authority forms the foundation of legal research, which is the bread and butter of any quality law office. You can read about researching legal authority in a lot more detail in Chapter 13. In this chapter, we let you know what you’ll be looking for.
Déjà Vu All Over Again: Review of Stare Decisis
Contrary to some popular opinions and those of a few radio talk show hosts, courts don’t simply grasp for decisions out of the blue without giving thought to their legal implications. As bizarre as some court decisions might seem, tribunals must rely on past case decisions when they arrive at any new decisions. The popular press doesn’t always give you the whole story. (That’s why you snagged this book, isn’t it?)
Courts make thousands of decisions every day. The one strand in the arsenal of legal tools that holds all court decisions together is the doctrine of stare decisis, the concept that courts must follow the rules laid down by higher courts in prior cases. Without this doctrine, the legal system would break down into something akin to anarchy. Stare decisis provides paralegals, attorneys, and judges with security, certainty, and predictability in researching the law. Without it, there would be no basis for legal decisions and lawlessness would prevail. (Okay, that may be a little melodramatic, but you get the idea!)
As long as the facts and issues of a precedent case are sufficiently similar to those of the present case under review, and as long as the court that rendered the decision in the precedent case is within the same system as and higher than the present court, the present court is bound to use the decision of the precedent case as authority in rendering its decision.
The one valid exception to following stare decisis occurs when the court finds that the reason for the rule or past precedent no longer exists. Courts can break with past tradition in order to remedy an unjust situation or change the law when the original logic or rationale for the prior rule ceases to exist. An example is the evolution of the law of racial desegregation in public schools. The U.S. Supreme Court overruled its prior precedent when it declared that segregated public schools violate the equal protection clause of the U.S. Constitution.
Sometimes courts don’t have a firm rule of law from past precedents, so they have to fashion a decision that’s not only just but also fills in empty spaces in the law. A case of first impression is one in which the court has no prior precedent or stare decisis to guide its decision making. A case of first impression is very often resolved on the basis of nonlegal traditions and, consequently, forms the foundation for future precedent.
Stare decisis is the name given to the courts’ requirement to follow prior precedent. In simple terms, a court must follow prior court decisions involving similar facts and legal issues unless there is a very good reason to break with past tradition.
Who’s the Boss? The Premises of Primary and Secondary Authority
Courts rely on two types of authority under the doctrine of stare decisis: primary authority and secondary authority. Primary sources of authority include cases, statutes, constitutional provisions, and administrative regulations. Secondary sources of authority aren’t written by the courts, legislatures, or administrative agencies; instead, they’re presentations of legal definitions or opinions on how the law ought to be interpreted. Table 8-1 defines the types of materials that fit into each of the two categories.
TABLE 8-1 Primary and Secondary Authority
Sources of Primary Authority |
Sources of Secondary Authority |
Any on-point case from the following sources: |
Any on-point authority from the following sources: |
U.S. Supreme Court |
Legal dictionaries |
U.S. Courts of Appeals |
Legal encyclopedias (such as American Jurisprudence 2d and Corpus Juris Secundum) |
U.S. District Courts |
Annotated Reporters (such as American Law Reports) |
State supreme courts |
Law reviews |
State appellate courts |
Treatises |
U.S. Constitution |
Formbooks |
U.S. Code |
Live or pre-recorded seminars |
State constitutions |
Legal blogs or podcasts |
State statutes |
|
Court rules |
|
Treaties |
|
Executive orders |
|
Administrative agency rules and regulations |
|
Municipal ordinances |
Check online at www.dummies.com/go/paralegalcareer2e to see a list of the specific law texts that contain the primary and secondary authority listed in Table 8-1.
First chair: Primary authority
Primary authority is the most important source and type of law. It consists of the actual written law as opposed to something written about the law. Primary authority is either judge-made (laws created by judicial decisions — also known as common law) or enacted (rules and statues created by legislatures — also known as civil law).
Handing down the judge-made law
Judge-made law passes down through written court decisions, which are also called opinions. Opinions explain how a court has ruled on an issue and why it ruled in that manner. So, if a court rules that Jim, a dog owner, isn’t responsible for the first injury caused by his pet, Rover, lower courts within the same jurisdiction that decide cases with similar facts are obliged to rule in the same way. Written opinions almost exclusively regard state and federal appellate court decisions because trial court opinions (with the exception of district court cases) aren’t usually reported in law books.
Following the rules of enacted law
In addition to relying on court decisions, courts are also subject to the rules and regulations enacted by legislatures. The U.S. Constitution is the highest form of enacted law in the United States. So, it’s considered the blueprint for all other laws. If a provision of the U.S. Constitution applies to a particular legal matter, the provision supersedes any federal or state laws to the contrary. Federal statutes and the regulations of federal administrative agencies also supersede state laws in those areas, like interstate commerce, patents, bankruptcy, or foreign affairs, that are entrusted to the federal government by the Constitution.
Enacted law also includes statutes. Congress and state legislatures create laws, called statutes, that citizens of their jurisdictions must follow. (If you want to know more about the nuts and bolts of how a bill becomes law, check out Chapter 4.) When a local legislative body such as a city council or board of county commissioners creates laws, they’re called ordinances. Because an ordinance is a primary source of authority, it comprises the force of law for the local jurisdiction. Courts must enforce ordinances to the letter as long as these local laws don’t conflict with the U.S. Constitution or state and federal statutes.
A third type of enacted primary authority, regulations, are every bit as much a part of the law as statutes passed by the legislature. Administrative agencies write regulations as part of their legislative capacity delegated by the legislature. Unless they conflict with statutes, court decisions, or the U.S. Constitution, regulations govern the conduct of the administrative agencies themselves, as well as the general public.
Second fiddle: Secondary authority
Secondary sources of authority include legal dictionaries, legal encyclopedias, annotated reporters, law reviews, treatises, formbooks, and even seminars. They’re secondary because they offer explanations of primary authority but don’t make up the actual laws written by the legislature, the courts, or agencies. In terms of its importance in legal research, secondary authority is a second-class citizen. So, although a court may consider the legal opinion of a law professor as written in the Harvard Law Review, the court isn’t obligated to rely on that opinion in the way it must rely on an on-point federal statute.
A precedent case is on-point, or on all fours, when it involves an identical issue of law and the same or a substantially similar set of facts as the law and facts of the case that a court is currently considering. When a case is on all fours or on-point, the current court must rely on it as mandatory authority if the precedent case is primary authority.
Applying the Law: Mandatory and Persuasive Authority
In addition to the distinction made between primary and secondary authority, you can make a further distinction between the way courts have to use authority. Authority may be mandatory or persuasive.
Counting on cases and statues: Mandatory authority
Mandatory authority is anything a court must use in reaching its decision, and includes on-point enacted law and judge-made law from a higher court in the same jurisdiction. So, mandatory authority includes relevant statutes and rulings from a higher court. This means that all mandatory authority is primary authority, but primary authority isn’t necessarily mandatory unless it’s on-point from a higher court.
In following the doctrine of stare decisis, a lower court must use applicable statutes as written and relevant mandatory higher court rulings in deciding its cases. For example, the Circuit Court of Appeals must use analogous U.S. Supreme Court cases to decide its cases. Therefore, when you conduct legal research for a client’s case, your objective is to find as much mandatory, primary authority to a research problem as possible.
A higher court’s decision isn’t always mandatory on a lower court even if it’s on-point. The higher court must be within the same system as the lower court. For example, a decision from the Supreme Court of Arizona is not binding on the lower courts in neighboring California.
Enacted laws (constitutional provisions, statutes, ordinances, or administrative regulations) are mandatory authority and must be used to decide a case in the following circumstances:
- When they’re used in the geographic area over which they have jurisdiction
- When they apply to the facts of the case
- When they don’t violate another law that supersedes them
For these reasons, state enacted law (such as a state statute or a state administrative regulation) is usually only mandatory in the state that enacted that law. Federal enacted law (like the U.S. Constitution, a federal statute, or a federal administrative regulation) can sometimes be mandatory authority in state courts. And on-point U.S. Supreme Court decisions are mandatory authority in federal courts and state courts.
A court is required to follow a case opinion, or precedent, in these instances:
- When the case precedent is sufficiently similar in fact to the case at hand
- When the case precedent comes from a court in the same jurisdiction that’s higher than the one deciding the case at hand
So, to be mandatory authority, an opinion must be on-point and must have been written by a court that’s superior to the court currently considering that opinion. If the opinion doesn’t meet one of these tests, it’s either persuasive authority or nonauthority. The concept of on-point is susceptible to various interpretations, and what is considered to be on-point by one court may not be by another. The concept of on-point, then, serves as a basis for appeal, because facts or issues that may be on-point to one court may be irrelevant to another.
Beware of dicta or obiter dicta in a court decision that appears to be on-point mandatory authority. Dicta (or it’s singular dictum) consist of additional language in a court’s opinion that’s irrelevant to the court’s decision. They appear primarily in appellate court decisions because these opinions are traditionally written and compiled in law books. This unnecessary language can masquerade as mandatory authority, but don’t quote it as mandatory authority in your legal memos.
For example, a court might rule that Jim is not responsible for his dog Rover’s first attack on a neighbor because of provocation, but the written opinion may provide the judge’s dissertation regarding how Rover’s breed is a nuisance to society and that the town council ought to pass an ordinance outlawing ownership of this breed within the city limits. With dictum, the judge goes off on a tangent and states things that aren’t relevant to that particular decision. The additional language might be interpreted as a signal to anyone researching the case that the court may decide future cases using that information, but that isn’t always the case. For instance, a court can’t use the judge’s opinion to ban Rover’s breed. So, you need to be particularly cautious if you decide to use dicta in your legal analysis. At most, it can be persuasive authority for a future case with similar facts.
Getting creative with sources: Persuasive authority
Persuasive authority is legal authority, generally case law or a piece of secondary authority, that a court may use in deciding cases (but doesn’t have to). Persuasive authority includes rulings from other courts, rulings from the same court, or nonbinding statutes from other jurisdictions. For instance, the New Mexico Supreme Court may consider an on-point ruling from the Ohio Supreme Court, but the Ohio ruling would only be persuasive, not mandatory, authority.
A court opinion isn’t mandatory if it’s written by an inferior court and is being considered by a higher court within the same judicial system or if it’s written by a court from a judicial system other than the one of the court that’s considering that opinion. In either of these two situations, the court doesn’t have to follow the opinion. However, if the opinion is on-point, the court may adopt it as persuasive authority.
A court considers several factors to determine whether an opinion is substantially persuasive, including the following:
- How many other courts throughout the country have adopted the opinion?
- Has the opinion been frequently cited with approval?
- Is the opinion well-reasoned and compatible with the opinion of the court?
The U.S. Constitution is the only mandatory authority for the U.S. Supreme Court. There’s no mandatory case authority for the U.S. Supreme Court, because its own rulings are the highest rulings in the United States. Although the U.S. Supreme Court isn’t necessarily bound by any of its prior decisions, these decisions constitute persuasive authority upon the Supreme Court, which means that in future rulings the Court may either consider or disregard its prior rulings. On-point cases from the federal trial court and federal court of appeals are at most persuasive authority upon state supreme and appellate courts.
Secondary authority can never be mandatory authority; it can only be persuasive authority. Although secondary sources of authority often make for good reading, a court is never required to decide an issue according to the way secondary authority treats the law.
In compiling legal authority for your case, don’t rely solely on secondary authority. Your argument will be much stronger with the support of primary authority. Sometimes secondary authority leads you to primary authority. If you’re so fortunate, quote the primary authority rather than the secondary authority in your legal argument. (We talk more about quoting sources in Chapter 13.)
Helpful But You Can’t Rely On It: Nonauthority
Nonauthority is anything the court may not rely on in making its decision. So, if a case isn’t on-point, it’s considered to be nonauthority rather than mandatory authority. Other examples of nonauthority are Shepard’s Citations, digests, A Uniform System of Citation, and any authority that’s no longer valid because it’s been overturned by a later case. (You can find out more about these other sources in Chapter 13.) Just because a resource is considered nonauthority doesn’t mean it’s useless. It can be extremely valuable to the paralegal, legal researcher, or attorney in terms of finding case law that is on-point.