I had a disaster with my first contract draft. I used a 1923 case and ignored a Supreme Court decision of last year. The senior counsel looked at me as though I had forgotten to breathe. You can not build on quicksand, he said. That is one incident that changed my approach to legal writing permanently.
Learning the law is not all about being knowledgeable of the law. It is all about the question of what the law matters most. Get either of these things wrong and you are left with worthless paper.
What Is Legal Authority Hierarchy?
The hierarchy of the legal authority is strict. Consider it as a business hierarchy. The CEOs command outweighs the suggestions of the manager. In law, Apex courts prevail over lower ones. Federal law beats state law. New rules beat old ones.
This is not in vain such a hierarchy. Law systems would fall into anarchy without it. Judges need clear guidance. There must be good sources of lawyers. Clients want reliability.
However, here is where it becomes tricky, the hierarchy is not necessarily evident.
Primary Authority: The Heavy Hitters
Within the direct sources of authority lie the government sources. They are the ones that make law, not merely discuss it.
Constitutions Rule Everything
At the summit is the U.S. constitution. Nothing beats it. State constitutions follow, but only on state matters. I got to know when one of the clients desired to appeal a state constitutional right to a federal immigration law. It doesn’t work that way.
Statutes Pack Power
Federal statutes are written by congress. State statutes are written by their state legislatures. These laws have a severe implication in document drafting. I can now write contracts by always reviewing the appropriate statutes.
I wrote a non-compete agreement a few years ago. I thought it was bulletproof. Then California reformed its law. My bulletproof contract just evaporated. Statutes can change. Stay current.
Court Decisions Create Precedent
Laws are interpreted in court cases and a binding precedent is formed. The lower courts are under the control of higher courts. Everybody is controlled by the Supreme Court.
Which of what cases binds your document? New lawyers are plagued by this question. I even recall looking at twenty similar cases, and thinking which was the most important.
That is the secret here, jurisdiction gives binding power. An example of a New York case does not make California courts bound. But Supreme Court cases hold everybody in.
Regulations Fill Gaps
Regulations are written by federal agencies at the direction of the congress. Environmental rules are written by the EPA. Securities rules are written by the SEC. These rules have legal force, but they can be over-ridden by statutes.
I had once been very dependent on an EPA regulation in an environmental contract. The regulation became irrelevant 6 months later as Congress enacted a new law. My contract had to be seriously revised.
Secondary Authority: The Helpers
Secondary authority does not make law. It describes and examines primary sources. Consider it as legal commentary.
Legal Encyclopedias
General overviews of American Jurisprudence and Corpus Juris Secundum are available. They are good places to begin but never your last word.
Law Review Articles
These are academic writings by law professors and law students. They are profound in analysis but they are not binding. Some judges cite them. They are neglected by others..
Practice Guides
Lawyers use these books to draft certain documents. They are pragmatic but not official. Apply them to the language of forms, not to principles of law.
Putting Hierarchy into Practice
When drafting legal documents, I follow a simple process:
Start with primary sources. Check relevant statutes first. Then look for controlling case law. Don’t waste time on secondary sources until you understand the primary law.
Check jurisdiction carefully. Federal courts follow federal law. State courts follow state law. Know which system controls your document.
Verify currency. Laws change. Cases get overturned. That perfect case from 2010 might be bad law today. Always check if your sources are still good.
Rank your citations. Put the strongest authority first. Supreme Court cases beat circuit court opinions. Recent cases beat old ones. Binding precedent beats persuasive authority.
Making It Work for You
Learning how to deal with legal hierarchy is a practice. Start simple. Know your structure of jurisdiction. Be aware of the courts that bind which decisions. Learn the fundamentals then move on to difficult questions of authority.
Do not forget legal authority is not just theory. It is the basis of all of your documents. Found on a sound basis, your documents will be firm. Build on weak authority, and it will collapse with opposition.
The partner was the senior and he was correct all along those years. You cannot really build on quicksand.
