Legal Writing 1.2: Authority – Part 1
What law applies
In a prior class, we discussed deduction and the legal syllogism. In that class, we discussed the importance in law of identifying the rule statement, or major premise.
In this lesson, we're going to begin to discuss from where this rule statement is derived. This is really the first question in being able to determine the relevant rule statement. Where do I look and what law applies? This is what I'm going to call authority. Authority is the building block of all legal analysis. Without authority, the rule statement is, at best, the author's opinion, and at worst, it's bad law. That's why in order to be an effective legal writer, thinker, and advocate, one must always start with a strong grounding in the sources of authority in American law, the hierarchy of that authority, and have a good grasp of how these different sources of authority fit together.
For some of you, this may be familiar going back to high school civics. For others, it might be brand new. Regardless, it is so important to being able to analyze like a lawyer. So if this is review, it will help you as you begin your quest to learn how to think, write, and advocate like an attorney. If it's brand new, recognize that this is just an introduction, and you'll likely need to spend some more time digging into sources and hierarchy of authority once you begin your legal education.
First, let's distinguish between two types of authority. The first known as primary authority and the second known as secondary authority.
Primary AuthorityComes from government entity in official capacity
Primary authority is simply any form of legal authority that comes from a government entity acting in its official capacity. The four types of primary authority in the federal system are the United States Constitution, federal statutes that are codified in something called the US Code, federal regulations, and decisions of federal courts. The last three correspond directly with the three branches of government. The legislative branch is responsible for passing statutes, the executive branch responsible for regulations, and the judiciary responsible for legal decisions. State systems have largely similar sources of primary authority, state constitutions, state statutes, state regulations, and state cases.
Secondary AuthorityDoes not come from government entity in official capacity
So what's not considered primary authority? That's anything that does not come from a government actor acting in her official capacity. These other sources of authority are called secondary authority. These are sources like law review articles, legal encyclopedias, treatises, and blog posts. In each case, secondary authority tells you about the law, but is not itself law. Therefore, when engaging in legal analysis, it is customary to cite and rely on primary authority wherever possible when crafting legal rules. Although the branches of government are co-equal, there is still a hierarchy of legal authority.
Heirarchy(1) Constitution, (2) statutes, (3) rules/regulations
The highest level of authority in the federal system is the United States Constitution. States similarly have state constitutions that serve as the highest source of authority for state law. These are the foundational documents that drive all authority that governments adopt or create. Legislatures, executives, and the judiciary cannot overrule these foundational documents.
Next in the hierarchy come statutes. Statutes are typically passed by a legislature. In the federal system, that's Congress. In the state system, each state has its own legislature responsible for passing laws as well. These laws can not violate the relevant constitutions, but other than that, they serve as the law of the land.
As you may or may not know, a lot of law in the United States is actually state law, not federal law. For example, the vast majority of tort law, contract law, property law, criminal law, family law, and traffic law are all types of state law. That is not to say that there are not federal laws. Of course there are. There are federal crimes, bankruptcy, copyright, food and drug law, banking law, tax law, and the like. There's just a lot less federal law than state law. In fact, many of your first year classes will deal exclusively with state as opposed to federal law.
The next source of authority after statutes in the hierarchy is law derived from the executive or executive agencies. These are typically rules or regulations that are left to government experts to craft in accordance with the requirements laid out in statutes that are passed by the legislature. An example of executive authority would be a specific regulation concerning what is allowed or not allowed when farming lettuce if such a rule was promulgated by the Food and Drug Administration. Regulations, at their core, simply interpret statutes, but they still can serve as binding authority.
In the next class, we'll look at the final source of authority, judicial decisions.
I. The Legal Syllogism (discussed in the previous lesson)
A. Major Premise
- The first part of a legal syllogism is the major premise, which is a rule of general applicability (i.e., a rule that applies not just to a single person or situation, but rather to a category of people or situations).
II. Sources of Legal Authority
A. The Importance of Legal Authority
- To identify the rule for the major premise (i.e., the rule statement), we must look to sources of legal authority.
- Being a legal writer begins a strong grounding in sources of legal authority, the hierarchy of that authority, and an understanding of how the different sources fit together.
B. Primary Authority: Any form of legal authority that comes from a government entity acting in its official capacity.
Four types of primary authority in the federal system (the last three of which correspond directly with the three branches of the federal government) include …
- The U.S. Constitution
- Federal statutes in the U.S. Code (which the legislative branch is responsible for passing)
- Federal regulations (for which the executive branch is responsible)
- Decisions of federal courts (for which the judiciary is responsible)
Primary authority in the state system includes …
- State constitutions
- State statutes
- State regulations
- State cases
C. Secondary Authority
- Secondary authority is any form of legal authority that does not come from a government actor acting in their official capacity.
- This includes law review articles, legal encyclopedias, treatises, and blog posts.
- Secondary authority tells you about the law, but it is not the law itself. As such, it is customary to cite and rely on primary authority whenever possible when identifying the rule for a major premise in a syllogism.
III. Hierarchy of Legal Authority
A. Highest Level of Authority: Constitutions
- The highest level of authority in the federal system is the Constitution.
- State constitutions serve as the highest source of authority for state law.
- Legislatures, executives, and the judiciary cannot overrule these foundational documents.
B. Next Highest Level of Authority: Statutes
- Statutes are typically passed by a legislature (Congress in the federal system, and state legislatures in the state system).
- These laws cannot violate the relevant constitutions.
- A lot of law in the U.S. is actually state law. The vast majority of tort law, contract law, criminal law, family law, and traffic law are all types of state law.
- Though there is less federal law than state law, there are, of course, many federal laws such as those pertaining to federal crimes, bankruptcy, copyright, food and drug law, banking law, and tax law.
C. Next Highest Level: Rules or Regulations from the Executive or Executive Agencies
- The next highest level of legal authority includes rules or regulations that are derived from the executive or executive agencies.
- These are typically rules or regulations that are left to government experts to craft in accordance with the requirements laid out in statutes that are passed by the legislature.
- Example: A regulation promulgated by the FDA concerning what is allowed, or not allowed, when farming lettuce.
- Regulations really interpret statutes, but they can still serve as binding authority.
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