The Hierarchy of Legal Authority:
In response to Eugene's earlier post about an anonymous VC blog comment being cited in a legal brief with the parenthetical that the comment was written "with some apparent authority," commenter "alias" chimes in that the hierarchy of authorities to rely on in briefs must go something like this:
1. On-point Supreme Court casesVery funny.
2. On-point binding court of appeals opinions
3. Analogous Supreme Court cases
....
6. Dicta in Supreme Court cases
....
12. Law review articles
...
22. Blog posts by well-known law professors, opining persuasively in their area of expertise and citing authority.
...
45. Op-eds in national newspapers.
...
75. Blog comments written by well-known law professors, opinion persuasively in their area of expertise and citing authority.
...
3,015,036. Particularly clever LolCats pictures.
3,015,037. Blog comments by people who speak "with some apparent authority"
1. Ninth Circuit holdings that clearly apply.
2. Ninth Circuit dicta, or analogous cases.
3. MAYBE Supreme Court holdings that clearly apply.
4. Supreme Court dicta, some other circuit's holdings, law review articles, blog posts, etc.
If you're a District Judge, and are at risk of reversal, what are the odds of being reversed by the 9th, vs. reversed by the Supreme Court? Probably 50:1.
In the 9th Circuit, it's more like:
1. What seems like a nice result.
2. Prior 9th Circuit holdings and dicta, Supreme Court holding and dicta, the panel's horoscope in the paper the morning of argument, particularly convincing bathroom graffiti, etc..
Note that the comment was about what to rely on in briefs, not the question of what authorities trump others. If you're arguing in the Fourth Circuit, and you have a good argument that the text of the Constitution is on your side, but the Supreme Court has already foreclosed that argument in another case, guess what the result of your appeal will be?
Also, thanks, Prof. Kerr.
The Constitution is #1, but if a circuit court of appeals says the Constitution means "X," it is not open to district courts in that circuit to say "no, it really means Y."
Hey, maybe it's a list for statutory cases.
3,015,050. Opinion from your barber.
OR
3,015,053. Commentary by Michael Moore.
Orin -- but then, at the very least, the statutory text should precede every other authority.
(Yes, I know the original list is made tongue-in-cheek, but now that we've opened the door to serious discussion, I must point out that statutes trump even (gasp!) supreme court cases.)
Of course, tongue in cheek. On a serious note, though, what does it mean to say that the statute trumps a Supreme Court decision? If there's a Supreme Court case interpreting a specific word or phrase in a specific statute, would you as a lower court judge really say that the plain language of the statute trumps the Supreme Court decision interpreting it?
Clerk can haz pink slip plz? k-tks-bye
L.S.,
I guess this is just the result of how lawyers are trained to write. Every statement has to be supported by "authority", even if that "authority" is nothing more than a statement by someone else. The value of this blog comment is simply in proportion to how much sense it makes, which, presumably, is the same as the amount of sense made by whatever was written in the brief just before the footnote. The only thing this cite prooves is that the attorneys on brief didn't make this opinion up just for convenience.
Right after Ninth Circuit dictum comes district court cases that distinguish Supreme Court cases on any basis.
Then comes district court cases that simply ignore Supreme Court authority on point.
The Niners have heard that the Supreme Court is the court of last resort, but they interpret that to mean that its the court whose opinions should be followed as the last resort.
I would just make the pedestrian/obvious observation that Congress "overrules" the Supreme Court all the time and that the statute, and not the Court's decision, is always the primary source of law. E.g. if Ledbetter Fair Pay Act goes through, then the rule the Court announced in the eponymous case obviously is changed.
No, but I would recognize that the Supreme Court was interpreting the statute (however tortured its analysis might have been) and that the opinion is necessarily subservient to the statute.
That Court decisions are generally an outflow of enacted statutes is a fact I would not lose sight of easily. Too often, bland statements by the Supreme Court are treated as "law" in contexts far different from those in which those statements were made. I wish that this unfortunate practice were curbed.
I do not have enough BK knowledge (nor do I have enough of an inclination to learn BK law) to make a substantive comment regarding whether SCOTUS was ignoring the statute. I just thought that it was an interesting opinion to note, in the context of our discussion.
If there's a Supreme Court case interpreting a specific word or phrase in a specific statute, would you as a lower court judge really say that the plain language of the statute trumps the Supreme Court decision interpreting it?
No, but I would recognize that the Supreme Court was interpreting the statute (however tortured its analysis might have been) and that the opinion is necessarily subservient to the statute.
But isn't that just being symbolic -- and if so, what does it really add? To take a silly example, you could say that the law derives from The Great Turtle Edward, who is a spirit from the planet Zillburry, but who has told you that he wants you to interpret the law based on decisions of the Supreme Court. As long as you end up actually doing the same thing as you did before, I'm not sure why it matters.
Not even in jest.
I think every so often, parties go overboard in interpreting the language of a case instead of the text of the statute being construed. In those cases, yes, I think it makes a big difference. See, e.g., Commissioner v. Bollinger, 108 S.Ct. 1173 (1988) ("The parties have debated at length the significance of our opinion in National Carbide Corp. v. Commissioner. . . . [W]e decline to parse the text of National Carbide as though that were itself the governing statute.").
The more that an opinion is tethered to statutory text, the more limited its scope. But if we just say that opinions are themselves "law," there is no limit to how the language from those opinions may be applied.
And, I think there is value to paying heed to symbols. If we are to treat judicial opinions as law, then the whole concept of stare decisis is nonsensical. It would be silly to say that one Congress is bound by the actions of an earlier Congress; we do not expect lawmakers to be restricted by prior acts (but for the Constitution). Yet, as far as judicial opinions go, it is the fact that they are *not* law -- but are instead interpretations of law -- which leads us to believe that prior understanding should be followed. If judicial opinions are themselves the source of law, then they should be freely overruled whenever policy demands it, much like how some statutes (such as the Internal Revenue Code) are changed yearly.
So, I suppose I disagree with you early on when saying that you will do things the same way if you treat opinions as law (as opposed to merely expositions regarding the meaning of an enacted text).
To be sure, if and when the Supreme Court strays very far from the language of a statute, then I guess it doesn't matter that the statute theoretically trumps an opinoin, but (at least in today's interpretive climate), I do not see that practice very often. So, I think the distinction between a judicial opinion (as opposed to a statute) as a source of law is an important one.
Situation: person obtains a firearm, and only later becomes a prohibited person. He isn't within (1) because he didn't receive while a prohibited person. He isn;t within (2) because his continued possession is not in or affecting commerce.
BUT there was a Berger Court decision that said such a person does violate the Act by continued possession. The only reasoning was that Congress meant to exercise its commerce clause powers to the max (altho the face of the statute indicates otherwise), its max commerce powers would cover possession of a gun that had sometimes moved in commerce, so it was illegal.
Always had a question about void for vagueness in this context. Statute must be clear enough for person to understand roughly what is forbidden. The language in the statute is perfecty clear, but under precedent a person can be convicted for doing something that any reader of the statute would see as illegal.
While we're deciding on a hierarchy authorities, I can't help recalling Justice Marshall's opinion in Citizens to Save Overton Park v. Volpe, where he all but said, "the legislative history being ambiguous, we are forced to turn to the text of the statute."
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