Kara Sears
The US legal system is hierarchical, with the Constitution at the top, followed by statutes, administrative regulations, and case law. Case law is found in judges' opinions, which are explanations for why judges decided a case in a particular way. It is considered a primary authority, which refers to the law or a constitutional or statutory provision, administrative regulation, or court opinion. Primary authority is further divided into two types: mandatory and persuasive. Mandatory authority refers to the rules that a court must follow, while persuasive authority is everything else. Secondary authority, on the other hand, refers to material that analyzes, discusses, or interprets the law but is not the law itself. It includes legal encyclopedias, jurisprudences, and American Law Reports (ALR).
| Characteristics | Values |
|---|---|
| Definition | Case law refers to the written opinions of courts, which are explanations for why judges decided a case in a certain way. |
| Hierarchy | Case law is the fourth level in the hierarchy of authority in the U.S. legal system, below the Constitution, Statutes, and Administrative Regulations. |
| Primary Authority | Case law is considered primary authority, which means it is a statement of the law by a governmental institution and carries mandatory or binding authority. |
| Secondary Authority | Secondary authority refers to material that explains, interprets, or comments on the law but is not the law itself. It includes sources such as legal encyclopedias, jurisprudences, and American Law Reports. |
| Persuasiveness | Primary authority, including case law, can be binding, meaning courts believe it applies to a case and must be followed. Secondary authority is always persuasive and can be followed if there is no conflicting primary authority. |
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What You'll Learn
Case law is a type of primary authority
Case law is found in judges' opinions, which are explanations of why judges decided a case in a particular way. Judges write these opinions after hearing a case, applying relevant statutes, regulations, and prior case law to the facts of the case. Case law is published in books called "reporters".
Primary authority refers to "the law" or the constitutional or statutory provision, administrative regulation, or court opinion. It is a published source of law that presents the legal rules, legal doctrine, or legal reasoning that may be used as the basis for legal decisions. When used to describe types of legal information, primary authority is one of two categories, the other being secondary authority.
Secondary authority refers to material that analyzes, discusses, or interprets the law, but it is not the law itself. It is not issued by law-making bodies in their official capacities, and courts are not obligated to follow it. Secondary authority is located in legal encyclopaedias, jurisprudences, and American Law Reports (ALR).
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Primary authority is divided into mandatory and persuasive types
Case law is a type of primary authority. Primary authority refers to authorized statements of the law by governmental institutions. This includes written opinions of courts (case law), constitutions, legislation (statutes and codes), rules of court, and the rules, regulations, and opinions of administrative agencies.
Primary authority is divided into two types: mandatory and persuasive. Mandatory authority refers to primary law that is binding on the court that is being appeared before. In other words, it is a legal rule that a court in a specific jurisdiction must follow. Only primary authority can be binding.
Persuasive authority, on the other hand, is primary law that is not binding but may be used to persuade the court to rule in a certain way in the absence of mandatory authority. It is important to note that a court's decision can be used as persuasive authority in any state or federal court that does not consider it mandatory. The degree of persuasiveness will depend on factors such as the factual similarity of the case, the stature of the jurist who authored the opinion, and the level of the court from which the decision came.
Secondary authority, which includes sources such as legal encyclopedias, treatises, and law review articles, is always persuasive. It is important to rely on primary authority whenever possible, as secondary authority does not carry the same weight in legal decisions.
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Secondary authority is always persuasive
Case law is a type of primary authority, which includes the written opinions of courts, constitutions, legislation, statutes and codes, rules of court, and the rules and opinions of administrative agencies. Primary authority is any published source of law that presents legal rules, doctrine, or reasoning that may be used as the basis for legal decisions.
Secondary authority, on the other hand, refers to material that is not the law itself but helps to explain, interpret, develop, locate, or update primary authorities. Secondary authority is always persuasive, meaning it can influence a legal decision, but it is not binding. It includes sources such as legal encyclopaedias, jurisprudences, American Law Reports, treatises, law review articles, and Restatements of the Law. These sources do not carry the weight of law but can be very helpful in legal research as they are often easier to understand and can point towards primary authorities.
While secondary authority is not binding, it can still be influential. It can be used to find binding cases and as a tool to support legal arguments. For example, in the absence of binding authority in a specific jurisdiction, lawyers may cite persuasive authority from other jurisdictions to support their arguments. This is especially true for higher courts, which may be persuaded by the decisions of lower courts or the decisions of courts in other jurisdictions.
However, it is important to note that courts are under no obligation to follow the interpretations of the law presented in secondary sources. They are free to agree or disagree with these interpretations and will not follow them if they conflict with the forum jurisdiction's public policy. Therefore, while secondary authority is always persuasive, it does not carry the same weight as primary authority and should be used with caution.
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Secondary authority includes treatises and law review articles
Case law is a form of primary authority, which includes written opinions of courts, constitutions, legislation, statutes, codes, rules of court, and the rules, regulations, and opinions of administrative agencies. Primary authority is the law itself, and it carries more weight or degree of persuasiveness than secondary authority.
Law review articles, published in periodicals or law journals, are written by legal academics and provide valuable insights into legal topics. These articles include summaries of legal issues, citations to other secondary and primary sources, and analyses of narrow legal topics. Law review articles are excellent resources for expanding legal research and understanding the interplay between different types of laws.
While secondary authority provides valuable commentary and interpretation of the law, it is not binding on courts. It serves as a persuasive tool that can influence legal decision-makers but does not carry the same weight as primary authority. Secondary authority helps to explain the law, locate primary authorities, and provide context and analysis to support legal arguments.
In summary, while case law constitutes primary authority, treatises and law review articles are classified as secondary authority. They play a crucial role in legal research and interpretation, offering additional insights and explanations that supplement the primary sources of law.
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Primary authority includes constitutions and legislation
The US legal system is hierarchical, with the Constitution at the top, followed by statutes, administrative regulations, and case law. When we refer to 'authority' or 'primary authority', we mean "the law". The law is a constitutional or statutory provision, an administrative regulation, or a court opinion.
Case law, or court opinions, is another form of primary authority. It refers to the written opinions of judges and courts, explaining their decisions in specific cases. These opinions interpret and apply the law to the facts of a case and can set precedents that guide future decisions. Case law often involves the interpretation of statutes and regulations, and while it is a form of primary authority, it is ranked lower than constitutions and legislation in the hierarchy of authority.
Secondary authority, on the other hand, refers to material that is not the law itself but helps to explain, interpret, and develop the law. This includes sources such as legal encyclopaedias, treatises, law review articles, and American Law Reports. Secondary authority does not have a binding effect on the courts but is still important in legal research and understanding the law. It provides context, analysis, and commentary on the law, helping to navigate the complex legal landscape.
In conclusion, primary authority includes constitutions, legislation, and case law, all of which carry significant weight in the legal system. They are the foundational elements of the law, with constitutions being the supreme authority, legislation being the written laws, and case law interpreting and applying those laws to specific situations. This hierarchy of authority ensures a structured and consistent approach to legal decision-making.
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Frequently asked questions
Case law is found in judges' opinions, which are explanations for why the judges decided the case the way they did. Judges write opinions after hearing a case. Case law is usually made by judges in appellate courts rather than trial courts.
Case law is a type of primary authority. Primary authority refers to "the law", or the constitutional or statutory provision, administrative regulation, or court opinion. Other examples of primary authority include constitutions, legislation (statutes and codes), and rules of court.
Secondary authority refers to material that analyzes, discusses, or interprets the law. It is not the law itself. Secondary authority is located in legal encyclopedias, jurisprudences, and American Law Reports (ALR). Secondary authority is always persuasive and should not be relied upon unless there is absolutely no supportive primary authority for the party's position.
