3.4: Hierarchy of Authority

As we have seen, American law comes from many sources. Not only does each branch of government create its own source of law, but each separate jurisdiction within the U.S. possesses its own set of laws. As such, knowing how the different pieces of law interact with each other takes on huge importance for legal researchers (especially if the different pieces of law in any way contradict each other, which is not an unusual occurrence).

Lawyers refer to individual sources of law as authorities and describe their relationship to each other as the hierarchy of authority. As discussed above, the standard hierarchy of authority starts with constitutions as the most authoritative and then proceeds in order of authoritativeness through statutes, judicial opinions, and administrative regulations. However, this simple hierarchy does not capture the nuance involved when dealing with authorities from multiple jurisdictions or authorities from one jurisdiction being applied by the courts of another. Furthermore, not all judicial opinions carry equal weight. Some additional concepts are therefore necessary to sort and rank authorities.

Primary v. Secondary Authority

Legal authority can be divided into two broad categories: primary authority and secondary authority. Collectively, this distinction is referred to as “type of authority.” Primary authority refers to “authority that issues directly from a law-making body.”¹ Thus, the four sources of law discussed previously make up primary authority.² Secondary authority, therefore, refers to “authority that explains the law but does not itself establish it, such as a treatise, annotation, or law-review article.”³ While lawyers may cite secondary authorities, courts do not view secondary authorities as possessing as much persuasive weight as primary authorities possess.

Mandatory v. Persuasive Authority

Legal authority can also be divided into mandatory (sometimes called binding) authority and persuasive authority. Collectively, this distinction is referred to as the “weight of authority.” Mandatory authority refers to an authority that a court considering a case must apply, while persuasive authority refers to “authority that carries some weight but is not binding on a court.”⁴ Obviously, lawyers benefit from knowing whether a court must apply an authority to a case or whether a court may choose not to apply an authority. Therefore, being able to determine the relative weights of authority is a skill every legal researcher should aspire to acquire.

Determining Weight of Authority

Determining the weight of authority for some sources of law can be quite straightforward. If a jurisdiction’s constitution applies to a set of facts before a court, then the constitution acts as mandatory authority. Similarly, if a statute from the jurisdiction in question relates to the facts in controversy, a court must apply it. The same holds true for regulations, though they tend to apply to more narrowly defined sets of facts. In other words, constitutions, statutes, and regulations tend to be either mandatory or irrelevant and are rarely used persuasively. Conversely, secondary authority, since it is not actually law but merely interpretation, can never be mandatory but only acts as persuasive authority. Thus, a determination of weight for many authorities will be quick and easy.

The weight of authority of judicial opinions, however, depends on several factors. A lawyer must first consider the choice of law. In order to be binding, a precedent must apply the same jurisdiction’s laws as would apply to the controversy at hand. However, the choice of law alone does not determine the weight of authority.

Second, the lawyer must consider the venue, or the court where her controversy would be heard if it went to trial. In order to be mandatory, an earlier case must have been issued from the same court system as will be adjudicating the controversy to which a lawyer would like to apply the precedent. Furthermore, the earlier case must be from a higher court, in a direct line of appeal, from the current controversy’s venue. As state court structures vary, let us look at a hypothetical case in the federal court structure as an example.

As discussed above, the federal court structure consists of trial level courts (District Courts), intermediate appellate courts (Courts of Appeals), and ultimately, the United States Supreme Court. District Courts and Courts of Appeals are grouped into twelve geographic circuits (and one topical circuit). If a lawyer loses a trial in a District Court, she may appeal to the Court of Appeals for whichever geographic circuit contains the District Court that tried her case. See Table \(\PageIndex{1}\) for a list of which circuits contain which districts.

Table \(\PageIndex{1}\): The Federal Judicial Circuits

Federal Circuit	Corresponding District Courts by State in which they Reside
First Circuit	ME, NH, MA, RI, Puerto Rico
Second Circuit	NY, VT, CT
Third Circuit	PA, NJ, DE, Virgin Islands
Fourth Circuit	MD, VA, WV, NC, SC
Fifth Circuit	TX, LA, MS
Sixth Circuit	TN, KY, OH, MI
Seventh Circuit	IN, IL, WI
Eighth Circuit	MN, IA, MO, AR, ND, SD, NE
Ninth Circuit	CA, AZ, NV, ID, OR, WA, MT, AK, HI, Guam, Northern Mariana Islands
Tenth Circuit	UT, WY, CO, NM, KS, OK
Eleventh Circuit*	AL*, GA*, FL*
D.C. Circuit	D.C.
The Federal Circuit	certain appeals are determined by subject matter

* The Eleventh Circuit split from the Fifth Circuit on October 1, 1981. Therefore, Fifth Circuit Court of Appeals decisions prior to that date are binding upon District Courts in the Eleventh Circuit.

If a lawyer were trying a case applying federal law in the United States District Court for the Eastern District of Kentucky, mandatory opinions would include opinions from the Sixth Circuit Court of Appeals and the United States Supreme Court. Because cases from the Eastern District of Kentucky may only be appealed to the Sixth Circuit Court of Appeals, opinions from other circuits’ Courts of Appeals would merely be persuasive, even though those courts are higher courts. Similarly, if the same lawyer were handling the appeal from the District case in the Sixth Circuit Court of Appeals, only Supreme Court cases would be mandatory, as the Supreme Court is the only court higher than a Court of Appeals in the federal system.

To complicate matters, however, an exception exists if the choice of law and venue do not match, i.e., a case in federal court involves state law, or a case in state court is applying federal law or the law of another state as a choice of law. Under these circumstances, the court applying a different jurisdiction’s laws will treat opinions from the high court of that jurisdiction as mandatory. This is because each jurisdiction’s high court acts as the final arbiter of its laws under the constitutional principles of federalism. For example, if the United States District Court for the Eastern District of Kentucky hears a negligence case governed by Kentucky state tort law, it will treat opinions from the Kentucky Supreme Court as mandatory.

Of course, even if a lawyer determines an opinion only serves as persuasive authority, she may still choose to use it, particularly if it features facts similar to her controversy. Furthermore, some cases may be more persuasive than others. Generally speaking, opinions coming from higher courts are more highly persuasive. Also, cases from the court system of the jurisdiction whose law has been selected as the choice of law tend to be better than cases from other court systems. In the abstract, more recent cases tend to be favored over older cases, as the more recent cases will be presumed to have been aware of the earlier cases and to have incorporated them into the more recent holding. Finally, although they are not binding because they may technically be overturned, earlier cases from the same court hearing the current controversy would be a higher level of persuasive authority as courts generally try to avoid overturning their earlier decisions.

Although not always an easy task, the evaluation of the hierarchy of authority for a given legal problem is an essential skill for legal researchers to determine what research paths to pursue. Furthermore, a legal researcher needs to be able to recognize the various sources of law that create the rules that govern the problem being researched. For these reasons, legal researchers should keep the structures of the U.S. Legal System firmly in mind as they research.

References

1. Authority, Black’s Law Dictionary (11th ed. 2019).
2. Note that in addition to the sources of law, government bodies often produce various amounts of documentation in the process of creating the sources themselves. These supporting documents will be primary in nature but will not be legally binding. Nonetheless, researchers will sometimes look at them to help interpret the sources of law they relate to.
3. Authority, Black’s Law Dictionary (11th ed. 2019).
4. Id.