Levels of Legal Authority
The main authority is the law, which includes constitutions, statutes and ordinances, rules and regulations, and jurisprudence. These powers form the rules that the courts follow. Four types of primary authority in the federal system (the last three of which correspond directly to the three branches of the federal government) include. The next source of authority according to the statutes of the hierarchy is the law, which is derived from the executive branch or executive agencies. These are generally rules or regulations that government experts must create in accordance with the requirements set out in the laws passed by the legislature. An example of an executive agency would be a specific regulation on what is and is not allowed when growing lettuce when such a rule has been enacted by the Food and Drug Administration. Regulations basically only interpret laws, but they can always serve as a binding authority. B. Primary Authority: Any form of legal authority emanating from a government agency acting in its official capacity. With a basic understanding of the structure of the U.S.
legal system, available sources of law, and the application of the weight of authority, you`ll be prepared to evaluate the resources you`ll find in your legal research. Primary authority (the law) can be mandatory or persuasive, depending on: Primary and secondary legal researchers use two types of authority called primary and secondary authority. State courts apply state laws and regulations and follow state precedents. For example, South Carolina courts must apply South Carolina laws, regulations, and jurisprudence. If a South Carolina court has not ruled on a particular point of law, it may be persuaded by a decision of another state court. The mandatory authorities as opposed to the persuasive authorities that the courts must follow are called binding (or binding) authority. The authorities that the courts can follow if they are persuaded to do so are called persuasive (or non-binding) authority. In the next course, we will look at the last source of authority, judicial decisions. Primary authority is simply any form of legal authority that comes from a government agency acting in its official capacity.
The four types of primary authority in the federal system are the U.S. Constitution, federal laws codified in something called the U.S. code, federal regulations, and federal court decisions. The last three correspond directly to the three branches of government. The legislature is responsible for the adoption of laws, the executive branch for regulations and the judiciary for legal decisions. State systems have broadly similar sources of primary authority, state constitutions, state laws, state regulations, and state cases. For more information on the order of authorities, see this article from the University of Pennsylvania Law Review, this article from Paralegal Today, and this article from the South Carolina School of Law. Federal law For matters of federal law, federal courts apply federal laws and regulations, as well as precedents set by federal courts in their circle. If a federal court in one county has not ruled on a point of law, it may be persuaded by a decision of another federal county. In this lesson, we begin to discuss the origin of this rule statement. This is really the first question in determining the relevant rule statement.
Where can I search and which law applies? That is what I call authority. Authority is the cornerstone of any legal analysis. Without authority, the rule statement is at best the author`s opinion and at worst a bad law. Therefore, to be an effective writer, thinker, and legal advocate, one must always start with a solid foundation in the sources of authority of American law, the hierarchy of that authority, and have a good understanding of how these different sources of authority fit together. First, let us distinguish between two types of authority. The former is known as the primary authority and the latter as the secondary authority. In a previous course, we discussed deduction and the legal syllogism. In this course, we have discussed the legal importance of identifying the rule statement or the main premise. Identifying the rules that apply to a particular legal issue in your jurisdiction requires legal research. The legal research process involves not only finding legal authorities, but also determining their importance.
So what is not considered a primary authority? It is anything that does not come from a government actor acting in its official capacity. These other sources of authority are called secondary authority. These are sources such as legal review articles, legal encyclopedias, treatises, and blog posts. In any case, the secondary authority informs you about the law, but it is not a law in itself. Therefore, in legal analysis, it is customary to use the lead authority whenever possible when drafting legislation. Although the branches of government are equal, there is always a hierarchy of legal authority. Secondary authority is not the law. Secondary authorities such as legal dictionaries and encyclopedias, books and treatises, and journal articles explain and analyze the law and help researchers understand and locate primary authorities. The highest level of authority in the federal system is the United States Constitution. Similarly, states have state constitutions that serve as the supreme source of authority for state law. These are the basic documents that determine all the authorities that governments adopt or create.
Legislators, leaders and magistrates cannot override these basic documents. For some of you, this may be familiar with high school civics. For others, it could be brand new. Either way, it`s as important as being able to analyze as a lawyer. So if it`s an exam, when you start your research, it will help you learn to think, write, and defend like a lawyer. If it`s brand new, know that this is just an introduction and you`ll probably have to spend a little more time digging through sources and authority hierarchy once you start your legal studies. (d) Reviews of unwritten books by students (in alphabetical order by examiner`s surname) 13) Other international tribunals and arbitral tribunals (in alphabetical order by name) 5. All abandoned materials (after the effective date, whichever comes first). Then come the statutes.
Statutes are usually adopted by a legislator. In the federal system, it`s Congress. In the state system, each state has its own legislature, which is also responsible for passing laws. These laws cannot violate the relevant constitutions, but if not, they serve as the law of the land. (b) State Constitutions of the United States, in alphabetical order of State * Organized by courts that issue advisory opinions; Prehistory and posthistory are irrelevant. The content of this guide comes from the work of Professor Therese Clarke Arado, who has been writing and updating the printed basic legal research course packages for each semester for many years. Court level Whether a decision (case) in a particular jurisdiction (state or federal) is mandatory or persuasive depends on the level of the court that decided it. 7) Managing authorities (in alphabetical order by agency) 7. Resolutions, decisions and rules of intergovernmental organizations in the following order – (2) Courts of Appeal, Courts of Appeal and Provisional Courts of Appeal I. The legal syllogism (discussed in the previous lesson) f) Notes (last first and further to oldest) State and federal courts generally follow the judicial structure illustrated in the diagram below. Court decisions are not binding on any court. Interlocutory decisions of the Court of Appeal are binding on subsequent courts of first instance.
Decisions of the highest court of appeal or the court of last instance are binding on both interlocutory courts and courts of first instance. The federal court system is divided into eleven numbered circles, the District of Columbia and the Federal Circuit. U.S. Supreme Court decisions are binding on all federal appellate courts and all federal district courts. The decisions of the appellate courts of each of these districts are binding on the federal district courts (trial courts) of that district. C. Next level: Rules or regulations of executive bodies or executive agencies 1) Administrative regulations in U.S.C., U.S.C.A. or U.S.C.S.