Legal analysis differs from other forms of analysis in (at least) one important respect: We have to deal with authority. The wall between “is” and “ought” can be insurmountable when you’re standing in front of a district court judge and she’s got a U.S. Supreme Court opinion that says you lose. Maybe the Supreme Court got it wrong. It happens. But you’re not going to win with that argument to the district court judge. She’s bound to follow that controlling opinion from the Supreme Court.
But outside of that simple example—binding authority with a directly on-point holding—the wall gets a bit more blurry. How do courts resolve legal questions when no clearly binding authority exists? And how should they resolve those questions?
Carrying a lantern into that darkness is Professor Amy Griffin’s new article, Dethroning the Hierarchy of Authority. The article attacks the binary way most lawyers conceptualize authority. In one bucket we put “binding” authority, which follows the fixed hierarchy of the courts. And in the other bucket we put so-called “persuasive” authority, which is just a jumble of everything else. Professor Griffin thinks we can do better:
We need better vocabulary, metaphors, and descriptive tools for sources used in legal argument in order to reach the more critical questions of what courts treat as law and why they do so.
Lawyers are quite good at addressing the easy questions, like my simple Supreme Court example. The Washington Court of Appeals understands that Washington Supreme Court opinions are binding authority. And it understands that Pierce County Superior Court opinions are not. But Professor Griffin observes that beyond those easy questions, our concept authority just isn’t up to the task:
For hard legal questions, [the existing binary scheme] tells us nothing about what sources a decision-maker might rely on beyond those that are binding. The existing model ignores the element of choice, assuming rules of law found within a prescribed set of legal sources dictate legal outcomes.
Nobody actually weighs an opinion, do they?
I really enjoyed this article for a few reasons. First, in my view, it addresses an obvious problem with how lawyers think about authority. In my 1L legal writing course, the students read about the concepts of precedent and stare decisis. Not surprisingly, the text describes the concept of binding authority and the need to follow precedent. But then it introduces the idea of “persuasive” precedent. In that discussion, the text explains that different types of decisions from different courts might be “weightier” than other decisions, or might “carry significant weight.”
I always ask my students: What the heck does that mean? Are people putting these opinions on a scale and weighing them?
Of course not. But I start that discussion to get the students thinking about what it means for a particular non-binding authority to be more or less persuasive. The concepts are just not easy to explain or understand.
I also appreciated (and will be adopting) Professor Griffin’s use of the term “optional authority,” instead of the more common “persuasive authority.” I’ve never much liked the term “persuasive authority,” mostly because I think it deceives my students. A given authority isn’t persuasive just because you refer to it as “persuasive authority.” Rather, as I tell my students, describing your authority as persuasive is like describing yourself as funny. Your reader isn’t going to take your word for it. You need to make them laugh.
Same for authority. Just saying it’s persuasive doesn’t make it so. Instead, lawyers need to understand what might make a particular bit of optional authority useful (and therefore possibly persuasive) for the decisionmaker in a given case. And then the lawyer needs to demonstrate that usefulness based on the specific context of the dispute.
That focus on context is a key insight from Professor Griffin’s article. She doesn’t advocate for a universal “ranking” of optional authority. Nor does she want a “better” version of the same sort of “taxonomy of legal sources” offered by various textbooks. Instead, Professor Griffin calls on scholars and lawyers to judge authority based on how it’s used in particular contexts:
Legal authors craft legal analysis for difficult legal questions using a vast array of acceptable legal sources. Their choice of authority varies widely given the context, and the factors that determine their choices evolves over time. We need a better understanding of how and why legal authors use sources of information to support legal analysis, and how and why they should.
Which brings me to the second thing I really enjoyed about Professor Griffin’s piece: It’s a call to action! Similar to Professor Alexa Chew’s piece, Stylish Citation, which paired specific advice with a more general theoretical framing, Professor Griffin offers some thoughts on how to think about different kinds of authority in different contexts. For example:
If the difficult question is one of interpretation, it is routine for legal authors to rely on sources such as legislative history, dictionaries, canons of construction, or agency decisions for their authoritative status. If the question is difficult for policy reasons, it is routine for legal authors to turn to factual sources of information—arguably not for their authoritative status, but for their substantive content.
But in my view, the most valuable contribution here is the framing of an important problem in applied legal theory: How can we more rigorously, accurately, and usefully analyze the use of optional authority? Professor Griffin provides some insights on that question. The final sentence of the article, however, is forward-looking—almost a request of her readers and fellow scholars:
We need a wider lens and more flexible framework to encourage thoughtful examination of how legal authors actually use authority to craft legal analysis, and how and why they should.
In this way, Professor Griffin is the Paul Revere of optional authority. This article sounds the alarm: The optional authorities are coming! The optional authorities are coming! And now the rest of us need to join the battle.
“The British are coming! Make sure your authorities are in order!”
Which brings me to the third thing I really enjoyed about Professor Griffin’s article: I’m already looking forward to the many follow-up articles or responsive articles that are bound to be written. ASU Professor Eric Nystrom and I had a brief chat about how the Ninth Circuit Historical Records Index System (9CHRIS for short; isn’t that cute?) could be used to track lawyers’ use of authorities over time, as lawyers’ access to various authorities increased. Professors Chew and Bennardo at UNC Law are working on a project analyzing which kinds of authority make it from lawyers’ briefs and into judges’ opinions—a concept they call “citation stickiness.”
And this was my first thought after finishing the paper: What we need isn’t just a new way of thinking about optional authority, but also a taxonomy of the kinds of open questions courts decide and for which they turn to optional authority. In other words, if the persuasiveness of optional authority depends on the “context” of a legal question, what are the different kinds of contexts? A well-established and binding rule that just hasn’t been applied in a particular factual circumstance is a different kind of “gap” than an absence of any rule at all, which is a different than a statutory rule that has not been interpreted or applied, &c., &c., &c.
I wonder if a robust theory of optional authority, coupled with a robust taxonomy of open legal questions, could allow legal theorists to offer some insight regarding what kinds of authority “pegs” fit with what kind of legal “holes.”
Don’t cite to a canon of construction when you’ve got a Supreme Court opinion that’s already interpreted the statute.
But all of that is probably a few articles down the road. I look forward to reading them as well!