Legal Research – Authority
Authority, as used in legal research, refers to two things:
1. The kind of law that is to be considered.
· Primary authority: In this regard, the applicable statutory law, case law, or administrative regulation is a statement of what the actual law is.
· Secondary authority: If the material to be considered is a discussion of what the law is, but it is not actually a statement issued by the government, then it is “secondary authority.” An example of secondary authority is a Restatement of the Law issued by the American Legal Institute.
2. The persuasiveness of the law.
· Mandatory or Binding Authority. In this regard, is the law required to be followed, is it suggestive only, or can it be ignored? If the law must be followed, it is called either “mandatory authority” or “binding authority.”
Standards of conduct issued by the three branches of government (judicial, legislative, and executive) are collectively referred to as “law.” Because these standards of conduct are binding upon the people and entities within the jurisdiction, these standards of conduct are mandatory in that they must be followed.
Depending on the branch of government that issues the standard, they are variously referred to as judicial opinions, legislative statutes, and executive or administrative regulations.
· Persuasive or No Authority: If the law does not need to be followed, it is either persuasive (it is suggestive) or of no authority (it need not be followed at all).
Legal Research for Authority
The process of searching for the law is called legal research. This process seeks to find the mandatory authority that applies to the facts and legal issues that are under consideration.
Questions come up at all levels of government that require legal research to resolve. What kind of signs may a business post? Where can those signs be posted? How can someone determine if a will is valid? When is a police officer required to warn you of your rights?
Many different factors can go into searching for the answers to these questions, and the research can be done by many different people – legal research is not just limited to attorneys.
Prior to undertaking any legal research, it is necessary to ask, and keep in mind the answers to two questions that guide the research that follows: 1) Which jurisdiction is the applicable law for? And, 2) Is the questioned activity regulated by a statute or ordinance?
Legal researcher often refer to a “case on point.” This is a judicial opinion that resolves the same or similar facts as the current dispute, and is from the same court that is to resolve the dispute, or a higher appellate court with supervising authority over that court.
If the activity is regulated by a statute or ordinance, the researcher must look for judicial opinions that construe that statute or ordinance. The preferred goal is to always find a “case on point.”
Primary authority is law that is issued by the government – either the legislature, the courts, or the executive. It is the law itself. Notwithstanding this, primary authority can be either mandatory or persuasive, and in some circumstances it has no authority.
Primary authorities are:
Appellate court decisions
Executive documents (executive orders)
Administrative agency decisions and rules
Each of the three branches of government have law-making powers
Judicial – case decisions and rules
Executive – administrative decisions and rules
Legislative – statutes
Secondary authority is a statement of the law that is not issued by the government as part of its law-making power.
Secondary authority explains or interprets the law as set out in primary authorities, and can be invaluable in leading the legal researcher to primary authorities.
Secondary authority may be persuasive, but it is never mandatory.
Not all law books are authority. For example, indexes, digests, annotations, and citators are not authorities – they are all finding aids designed to direct the legal researcher to primary and secondary authorities.
Statutes are mandatory authority within their enacting jurisdictions. Outside of the enacting jurisdiction, statutes have no authority, not even persuasive authority. For example, one state may expressly state in its statutes that a certain business activity is a violation of law – such as charging interest in excess of 18% on a consumer loan. If a neighboring state has not enacted a similar statute, the fact that the first state has done so has no impact on the question of whether a business in the second state has violated the statute by charging interest on a consumer loan at a rate of 24%.