Legal Writing 1.3: Authority – Part 2
In the last class, we discussed the hierarchy of authority and we focused on the first three sources of authority in the federal and state systems: constitutions, statutes passed by the legislature, and regulations passed by the executive. In this lesson, I wanna talk about the fourth.
Lest you concern that we were never going to get there, this fourth source of authority is case law, judicial authority. Like legislatures in the executive, there are federal courts and state courts. And these courts are tasked with determining how specific laws apply to specific fact situations and in some cases, what statute should apply at all. Courts are also responsible for articulating what the law means in the absence of a clear directive from another branch of government. Case law is also the foundation of many of the laws that we have come to understand to be authoritative as part of the common law system.
So let's take a look at how case law works. Going back to our hypothetical client that is charged with speeding in a school zone by going 35 miles per hour, a court might be the one responsible for articulating an exception to that rule for emergencies or might be responsible for defining what the term school zone means if neither a statute nor regulation does. Case law is what you'll spend the vast majority of your time in law school reading. But not all case law is alike. As you may already know, there's a hierarchy of authority within case law. Some court decisions are binding. Others are persuasive. What do you think those terms might mean? It's actually pretty straightforward. Binding authority is authority that must be followed by a particular court on a particular legal issue while persuasive authority is authority that is useful to a court but the court can choose not to follow it.
Heirarchy of Courts
On the federal side of the equation, the top layer, the highest court, is known as the Supreme Court of the United States. The Supreme Court is the last word on issues of federal law within the federal courts. The decisions of the Supreme Court are always binding on issues of federal law, whether they're decided by federal or state courts. State supreme courts serve a similar role. They are the final arbiters of the meaning of state law, whether those questions arise in federal or in state court.
You'll read a lot of Supreme Court decisions in law school. But the reality is very few cases, relatively speaking, are decided there. The United States Supreme Court only hears cases that are first heard by one of the 13 federal courts of appeal, which are first heard by a trial court judge in one of the 94 federal district courts. Not all cases go to a court of appeal and not all cases that go to a court of appeal go to the United States Supreme Court.
So what if there's not a Supreme Court case that answers my question? Is there still binding authority? Maybe. Below the Supreme Court are the courts of appeal. In the federal system, they're simply known as the federal circuit courts. These courts are based on geography or subject matter and the decisions they issue are binding on other cases within that circuit, either at the appellate or the trial level. So for example, if the Second Circuit Court of Appeals in New York decides a case, that holding, the rule of law that it establishes, is binding on federal courts in the states of New York, Connecticut, and Vermont because those are the three states that make up the Second Circuit Court of Appeals. By contrast, that decision of the Second Circuit is not binding on the Fourth Circuit, which covers the States of Maryland, Virginia, North and South Carolina, nor is it binding on the district courts in those states.
Finally, the bottom layer of the federal courts is the trial courts. In the federal system, trial courts are known as the district courts. Most of the decisions that you will find will be decisions by one of the 94 district courts. These courts are organized by state or part of a state. These decisions are binding only on the parties to that case. That makes them just persuasive on every other case. So to be clear, lawyers can still use persuasive sources of authority like district court decisions when doing legal analysis but courts are not required to follow those decisions unless they're binding. The content of those decisions is only useful in so far as it persuades. And that's just the federal side. The states have similar hierarchies of the court systems within each state, although some states have just one layer of courts of appeal as opposed to two.
So let's recap with an example. Let's assume that your client is named Janine Johnson. She's a photographer in California. Janine sues a competing photographer and designer for using one of her copyrighted photos without permission. Because her claim is federal, the law that governs is the federal Copyright Act. That's true whether the case is tried in a federal trial court, for example the Central District of California, or a California state trial court.
Let's assume for now she's in federal court. Let's also assume there's a tricky legal question of whether Janine's suit is allowed under the Copyright Act. What court decisions would you look to to find binding authority? Her case is bound only by the Supreme Court and the Ninth Circuit Court of Appeals, which is the federal circuit court that includes the state of California. That's it. Those are the only decisions that are binding. If for example, the Second Circuit Court of Appeals in New York has answered the question that she's looking for, she can only rely on that authority in crafting her legal rule because of its persuasive character. The court in the Ninth Circuit does not need to follow the Second Circuit's decision.
What about a decision of the California Supreme Court? Given that this is a federal law question, that too is not binding on her claim. Here, the Copyright Act. The California State Supreme Court can only issue binding decisions that deal with California state law. Again, she can still rely on these court decisions but only for their persuasive value, not because they must be followed.
So to briefly recap, authority is the building block of legal analysis. It answers the central question when finding the relevant rule of law, what law applies, and what law must be followed.
Two, some sources of law are binding, meaning they must be followed. Others are merely persuasive. And more than that, the question of what law is binding and what is persuasive depends on what legal question is being asked and in what jurisdiction.
Three, federal courts are responsible for issuing binding statements of federal law and state courts are responsible for issue binding statements of state law.
Four, primary law, that is law issued by a government entity, can be binding but is not always. It depends on the legal issue and the jurisdiction. Secondary law, by contrast, is never binding but can be helpful in helping understand what the law is or what the law should be.
I. Hierarchy of Legal Authority
B. Statutes passed by legislatures
C. Regulations passed by the executive
D. Judicial authority
i. What is judicial authority?
- Courts determine how specific laws apply to specific fact situations.
- Courts sometimes determine what statute should apply in a specific situation.
- Courts articulate what the law means in the absence of a clear directive from another branch of government.
- Case law is also the foundation of many of the laws that we have come to understand to be authoritative as part of the common law system.
ii. How does case law work?
Example: Speeding in a School Zone Hypothetical
- Return to the hypothetical situation from the previous lesson with the client who was speeding in a school zone by going 35 miles per hour.
- A court might be the one responsible for articulating an exception to that rule for emergencies.
- Or a court might be responsible for defining what the term “school zone” means, if neither a statute nor a regulation does.
iii. Hierarchy of Authority Within Case Law
- Binding Authority: Authority that must be followed by a particular court on a particular legal issue.
- Persuasive Authority: Authority that is useful to a court, but the court can choose not to follow it.
iv. Hierarchy of Authority Within the Federal System
a. Federal District Court
- In the federal system, a case is first heard by a trial court judge in a federal district court.
- These courts are organized by state, or part of a state, and there are 94 of them throughout the U.S.
- These decisions are binding only on the parties to the particular case, meaning that the decision is merely persuasive in every other case.
b. Federal Circuit Court
- A case can then can be appealed to a federal court of appeal (i.e., a federal circuit court), of which there are 13 throughout the U.S.
- When a circuit court decides a case, the holding is binding on federal courts in states within that circuit (at both the trial and the appellate levels). However, it is not binding on other circuit courts, or on district courts in states belonging to other circuits.
c. U.S. Supreme Court
- From there, a case can be appealed to the U.S. Supreme Court.
- The U.S. Supreme Court has the final word on issues of federal law within federal courts.
- Decisions of the U.S. Supreme Court are always binding on issues of federal law, whether they’re decided by federal or state courts.
v. Hierarchy of Authority Within State Systems
- The states have similar hierarchies of court systems within each state. However, some states have just one layer of courts of appeal (rather than two, as the federal system does).
- State supreme courts are the final arbiters of the meaning of state law, whether those questions arise in federal court or in state court.
vi. Hypothetical Case Example
a. Facts of the Hypothetical Situation
- A client wants to sue a competing photographer for using one of her photos without permission, under the Federal Copyright Act.
- The client may file in either federal trial court (e.g., the Central District of California) or a California state trial court. But in this hypothetical, assume that the client files in federal court.
- In this case, there is a question as to whether this suit is allowed under the Copyright Act.
b. Binding Authority
- In this situation, the only binding authority on the client’s case is the Ninth Circuit Court of Appeals (the federal circuit court that includes the state of California) and the U.S. Supreme Court.
c. Persuasive Authority
- For example, even if the Second Circuit Court of Appeals in New York has answered this particular question, the court here in the Ninth Circuit is not bound by that decision. When crafting her legal argument, the client may look to a decision from the Second Circuit as only persuasive authority.
- If the California Supreme Court has answered this particular question, even this is not binding authority in the client’s case. State supreme court decisions are binding only on matters of California state law. Here, the client is dealing with the Federal Copyright Act. The state supreme court’s decisions on this federal law will not be binding authority. The client can look to state supreme court decisions on issues involving a federal law for only their persuasive value.
- When finding the relevant rule of law, legal authority answers the question of which law applies and what law must be followed.
- Some sources of law are binding, whereas others are persuasive. Which are binding and which are persuasive depends on the legal issue and the jurisdiction.
- Federal courts issue binding statements of federal law. State courts issue binding statements of state law.
- Primary law (i.e., law issued by a government entity) can be binding, depending on the legal issue and the jurisdiction. Secondary law helps us understand what the law is, or what it should be, but is never binding.
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