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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 cases
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"
Very funny.
Dave Hardy (mail) (www):
Around here, in District Court, it's more like:

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..
4.25.2008 10:13pm
NYNY (mail):
What, Lolcats are not binding authority?
4.25.2008 10:27pm
Mark E (mail):
Interesting that the Constitution is not #1.
4.25.2008 10:46pm
alias:
Mark E, my comment was off the cuff and rather tongue-in-cheek, but it often happens that there is a debate about what a particular provision of the Constitution means and how it applies to a particular situation, especially with the provisions containing standards rather than rules. Even if you're 90% certain that the text of the Constitution is on your side, as someone arguing before a court of appeals, you're generally on firmer ground if you find a Supreme Court case that agrees with you.

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.
4.25.2008 11:12pm
Cornellian (mail):
Interesting that the Constitution is not #1.

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."
4.25.2008 11:21pm
NatSecLawGuy:
Taking a break from studying legislation. That is one long "funnel of abstraction."
4.25.2008 11:40pm
OrinKerr:
Interesting that the Constitution is not #1.

Hey, maybe it's a list for statutory cases.
4.26.2008 12:16am
Dave N (mail):
But it does rank higher than

3,015,050. Opinion from your barber.

OR

3,015,053. Commentary by Michael Moore.
4.26.2008 1:06am
andy (mail) (www):


"Interesting that the Constitution is not #1."

Hey, maybe it's a list for statutory cases.


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.)
4.26.2008 2:26am
Christopher Hundt (www):
4.26.2008 2:34am
OrinKerr:
andy,

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?
4.26.2008 3:33am
Lonetown (mail):
How about drive-bys, don't they count?
4.26.2008 8:37am
M (mail):
In a pro se brief I was reading recently there was a citation to Judge Judy. I thought that was really wonderful and was just sad that the appellant hadn't given the proper citation by episode and minute into the show (isn't that how the blue book says you should cite Judge Judy?) so we couldn't check his cite, but then it turned out he wasn't just a crochety old man but also crazy. Then it wasn't quite as funny.
4.26.2008 10:14am
DiverDan (mail):
How did Op-Eds in National Newspapers get so high? I can understand accepting an Op-Ed in the Wall Street Journal as some authority (though surely below the Blog Entries by respected Law Professors, citing authority), but Op-Eds from the New York Times have to rate only slightly higher on the list than Dreams induced by Mescaline, Psilocybin, LSD, or any other halucinogenic substance.
4.26.2008 10:15am
Bill Dyer (mail) (www):
That footnote is an embarrassment, whether so recognized or not, to the judge whose law clerk penned it. The clerk should be embarrassed as well. It's not like there's a shortage of other, better sources that could have been cited on the topic of alternatives to the three-judge cocktail.

Clerk can haz pink slip plz? k-tks-bye
4.26.2008 10:26am
NaG (mail):
Bill Dyer, you lose two points for failing to read closely. The citation to the blog comment was contained in a reply brief of a petitioner, not a court opinion. You are quite right -- a court opinion that cites to a blog comment would be highly embarrassing. But a pro se criminal petitioner? At least he reads.
4.26.2008 11:18am
martinned (mail) (www):
Repost from the other thread (it fits better here):

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.
4.26.2008 11:42am
Roscoe B. Means:
Dave, You skipped a couple of steps:

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.
4.26.2008 12:34pm
andy (mail) (www):
Orin wrote:


On a serious note, though, what does it mean to say that the statute trumps a Supreme Court decision?


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.


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.

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.
4.26.2008 1:37pm
andy (mail) (www):
Also, Orin, you might find Judge Tymkovich's concurring opinion in In re Jason Derek Troff, 479 F.3d 1213 (10th Cir. 2007) interesting. Here are the key snippets:


I fully concur in Judge Henry's disposition. I write separately because this case raises a stark reality I wish to highlight: What happens when the Supreme Court ignores the plain meaning of a statute?


The statute at issue here is not ambiguous or unclear. . . .
But the Supreme Court in Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), tells us that we should discount the statutory text for policy considerations. . . . Instead of leaving well enough alone, however, the Court departed from ordinary textual analysis and followed the lure of policy maker. Thus, we get odd language from Kelly such as "the text is only the starting point," followed by language endorsing a policy assessment—we need figure out what is "for the benefit of society as a whole."



I agree with the bankruptcy court below that the Supreme Court overreached in Kelly. . . . It is the Court's interpretation of the statute that commands that the debtor lose here, not the language Congress chose to use in the statute. As tempting as it would be to ignore the Supreme Court's interpretation of the text in favor of the actual text, that is not our role at the circuit court level.


In the end, Kelly is a textbook example of the Court ignoring the plain meaning of a statute to further competing policy goals with very good arguments on each side. It is not altogether clear the Court made the best choice.
4.26.2008 2:08pm
David Ross (mail) (www):
Since the Supreme Court decision in Raich, some commentators have suggested that legal substances could be used in lieu of a barbiturate to reduce pain after operations. See, e.g., In Ur Base Killin Ur Doodz, http://fark.com, archived entry posted 12/31/2007 at 1:09 a.m., comment #8 by m3owr! (meowing, with some apparent authority, in favor of more catnip).
4.26.2008 2:09pm
Just Saying:
Andy-- I beg to differ, but am willing to be persuaded. Kelly was about whether an obligation to pay money to the state as part of a plea bargain can be discharged in chapter 7; 523(a)(7) provides that a debt cannot be discharged, "to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss". We can certainly quibble about whether a restitution order is "to and for the benefit of a governmental unit", but the SCOTUS reading is plausible... and when Davenport (495 U.S. 552) rolled around a few years later, they said that such a debt COULD be discharged under Chapter 13, since 523(a)(7) doesn't apply under that Chapter. It seems that if their end in Kelly was truly ideological, they would have found a way to make the same result occur in 13; however, many of the same justices were in the Kelly and Davenport majorities. That indicates to me that they made a good faith effort to interpret an ambiguous statute.
4.26.2008 2:42pm
andy (mail) (www):
Just Saying:

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.
4.26.2008 3:46pm
Observer:
Of course, at 0.5, slightly ahead of "On-Point Supreme Court cases," you would find, for two of the current Justices, the U.S. Constitution, and for five of the current Justices, any NYT op-ed.
4.26.2008 4:02pm
OrinKerr:
Andy writes:

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.
4.26.2008 7:42pm
Hoosier:
I don't like #12.

Not even in jest.
4.26.2008 10:44pm
CPDL:
I'm not sure I understand #12.
4.27.2008 2:04am
andy (mail) (www):


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.


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.
4.27.2008 2:28am
Dave Hardy (mail) (www):
Example I came across. The Gun Control Act of 68 makes it illegal for a prohibited person (felon, person subject to DV restraining order, etc. to (1) receive a firearm that has EVER travelled in interstate commerce of (2) possess a firearm in or affecting commerce.

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.
4.27.2008 6:07pm
Gino:
I would put lolcat pictures above op-eds in newspapers.
4.28.2008 9:29am
Seamus (mail):
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.

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."
4.28.2008 5:07pm
BruceM (mail) (www):
Anything I post is imbued with actual authority (let alone apparent authority)... surely my wackiest posts here are on equal standing as an opinion from a state court of appeals.
4.28.2008 9:08pm