> For the complete documentation index, see [llms.txt](https://jennyrice.gitbook.io/wrd-418-legal-writing/llms.txt). Markdown versions of documentation pages are available by appending `.md` to page URLs; this page is available as [Markdown](https://jennyrice.gitbook.io/wrd-418-legal-writing/chapter-1-legal-authorities-and-sources-of-law/hierarchy-of-authority.md).

# Hierarchy of Authority

## <mark style="color:blue;">1. Precedent and</mark> <mark style="color:blue;"></mark>*<mark style="color:blue;">Stare Decisis</mark>* <a href="#heading-h.3znysh7" id="heading-h.3znysh7"></a>

**Legal precedent** means past judicial decisions that a court must follow in the future; therefore, legal precedent is a type of mandatory authority. To determine whether the past case must be followed, the court and the parties will consider if (a) the material facts of the past case and the current situation are the same, and (b) the legal reasoning applied in the past case is applicable to the current situation.&#x20;

***Stare decisis*** is Latin for “let the decision stand.” When there has been a decision on a past set of facts that is just like the set of facts currently before the court, then the court must hold that the same outcome should occur.&#x20;

In legal arguments, "authorities" are the laws, precedents, and other materials that courts use to make their decisions. There are two types of authorities: **mandatory** and **persuasive**.&#x20;

## <mark style="color:blue;">2. Mandatory Authority Versus Persuasive Authority</mark> <a href="#heading-h.1fob9te" id="heading-h.1fob9te"></a>

<mark style="color:green;">**Mandatory authority**</mark> <mark style="color:green;">**refers to any law that a court in a particular jurisdiction**</mark><mark style="color:green;">**&#x20;**</mark>*<mark style="color:green;">**must**</mark>*<mark style="color:green;">**&#x20;**</mark><mark style="color:green;">**consider when trying to solve a legal problem.**</mark> This will include the United States Constitution, the state Constitution, judicial decisions by the United States Supreme Court, judicial decisions made by higher courts in that court’s jurisdiction, statutes enacted by the legislature, and regulations promulgated by administrative agencies that exercise authority over that jurisdiction. In this class, you will be applying cases and statutes to hypothetical situations, so this section focuses on those two types of law.

<mark style="color:orange;">**Persuasive authority refers to any law or other material that a court**</mark><mark style="color:orange;">**&#x20;**</mark>*<mark style="color:orange;">**may**</mark>*<mark style="color:orange;">**&#x20;**</mark><mark style="color:orange;">**consider when trying to solve a legal problem**</mark><mark style="color:orange;">.</mark> There are times when a particular jurisdiction does not have any statutes, cases, or other laws that address the legal issue, so a court can look outside its own jurisdiction for guidance about how to proceed. Other times, a jurisdiction considering changing its law will look to other jurisdictions to see how they are currently addressing a particular issue. Persuasive authority includes all laws and material from any place outside the jurisdiction, including state Constitutions, judicial opinions, statutes, and regulations.

## <mark style="color:blue;">3. Primary Sources vs. Secondary Sources</mark> <a href="#heading-h.2et92p0" id="heading-h.2et92p0"></a>

Though it might sound a bit confusing, authorities can also either be **primary** or **secondary**.

**Primary authorities are always a type of law:** Constitutions, statutes, regulations, cases. However, there are also many materials that interpret, explain, and discuss laws, and these are called **secondary authorities**. Examples of secondary authorities are American Law Reports (ALR), Restatements, encyclopedias, treatises, hornbooks, legal digests, textbooks, legal periodicals, and law review articles.

To use an analogy to explain, think about being in history class and studying the Declaration of Independence. The Declaration of Independence, in its cursive handwriting on yellowed parchment, is a primary source. Any reproductions of the specific words in the text would also be considered a primary source. If you want to find out how the words of the Declaration of Independence were used to influence the French Revolution, you could find a book in the library or a resource online that would discuss the Declaration of Independence and explains its influence on the French Revolution. That book is a secondary authority. It takes the words of the primary source and manipulates them to present an argument about a particular point of view.

In the same way that a book examining the Declaration of Independence is a secondary authority, materials that examine sources of law are types of secondary authority. These types of authority are excellent for starting your legal research and for gaining a foundational understanding because they provide an overview of the particular topic and are often presented in easier-to-understand terms than what you will find in cases. Your legal research professor will spend time showing you many resources that you can use.

However, it is important to always keep in mind that, no matter how recognized or brilliant a secondary authority is, you should only rely on it as persuasive authority to a court. Remember, **secondary authority is not law**, but only one person’s interpretation of a law.

There are times when a court will adopt a secondary authority’s point of view and make it into the law of that jurisdiction. At that point, however, mandatory authority is the case that adopted the language, and not the secondary authority. For example, take the Restatement Second of Torts. A Restatement is a secondary authority. However, if a Michigan court in the Michigan case *Fowler* v. *Wells* decides to adopt the definition of contributory negligence in the Restatement, then the definition that was in the Restatement is now the definition applied in Michigan. However, if in a future legal situation, you wanted to rely on that contributory negligence definition, you would cite to *Fowler* v. *Wells*, not the Restatement.

<div data-full-width="true"><figure><img src="/files/vuuEdixUUzZvTSmV74OB" alt=""><figcaption></figcaption></figure></div>

## <mark style="color:blue;">4. How Much Weight to Give Different Legal Material</mark> <a href="#heading-h.tyjcwt" id="heading-h.tyjcwt"></a>

We have looked at different ways to sort legal material: mandatory versus persuasive, whether it’s precedent or *stare decisis*, and primary versus secondary. Having ways to sort these things is all fine and well, but how does this actually play out when you are a lawyer writing to a court or a law student writing a legal document for a class?

Different types of authority have different weight depending on what the legal issue is and in what jurisdiction the legal issue has been brought. Mandatory authority in a particular jurisdiction is given more weight than persuasive authority. Primary authority in a particular jurisdiction is given more weight than secondary authority.

The primary authority, whether it be the Constitution, a statute, a regulation, or a case, must be relevant to the legal issue that is being considered. If the law does not have a connection to the legal issue at hand, then it has no weight at all.