There are different types of primary sources of authority. The most important are that whether a court decision is a convincing authority or a binding authority depends on the rank and jurisdiction of the courts concerned. A decision of a lower court is a convincing authority for a higher court. Therefore, a decision of another court is a persuasive authority for the Supreme Court, as it is the highest court in the United States. In general, a decision of a court of equal rank is a convincing authority. For example, decisions of the court of first instance before the same court of first instance are not binding. A decision of a court in one jurisdiction is a convincing authority for the courts of another jurisdiction. For example, federal court decisions are not binding on state courts and vice versa, and decisions of other state courts are not binding on state courts. Courts decide disputes by first determining the facts of a case and then applying the law to those facts to make a decision. When presenting a case in court, you need to do 4 things: For more information about the authorities` order, check out this article from the University of Pennsylvania Law Review, this article from Paralegal Today, and this article from the South Carolina School of Law. Researchers in primary vs.
secondary law use two types of authority, called primary authority and secondary authority. The secondary authority explains and analyzes the law. Most legal secondary authorities have many quotes about primary authorities such as cases, laws and regulations. The secondary authority does not have a binding effect on the court, but helps to explain what the law is or should be. Although court decisions with persuasive power do not constitute a binding precedent, a court may choose to rely on and follow the decisions. Cases like this one from Michigan indicate that a court can follow the decisions of another jurisdiction if the reasoning is convincing. Courts may also be guided by decisions of other jurisdictions; for example, when you decide on first-impression issues — like this one from Colorado — or issues where the state forum law isn`t clear — like this one from Utah. However, a court will not follow decisions of convincing authority if the decision violates public policy of the court of the forum. The primary authority is the set of rules or laws that bind the courts, the government, and individuals. Unlike coercive authority, persuasive authority describes a source of law – primary or secondary – that has some authoritative weight, but is not binding on a court. ** Multiple cases of the same court? First, cite the most recent decision and continue with the oldest one. The courts of the State shall apply the laws and regulations of the State and follow the precedents of that State.
For example, The courts of South Carolina must enforce the laws, regulations, and jurisdiction of South Carolina. If a South Carolina court has not ruled on a particular point of law, it may be persuaded by a decision of another state court. Mandatory c. The persuasion that the courts must obey is called mandatory (or binding) authority. The authorities that courts can follow if they are persuaded to do so are called persuasive (or non-binding) authority. The main authority is the law, which includes constitutions, laws and ordinances, rules and regulations, and jurisprudence. These authorities form the rules that the courts follow. The purpose of legal research is to find support in the law (judicial authorities) for the legal arguments you are trying to win your case. Jurisdiction The question of whether a decision (case) is binding or persuasive in a particular jurisdiction (state or federal) depends on the level of the court that decided it.
With a basic understanding of the structure of the U.S. legal system, the sources of law available, and the application of the weight of authority, you`ll be willing to evaluate the resources you`ll find while conducting your legal research. Other sources that are a persuasive authority include reformulations, treatises, and jury instructions. The relevant weight that a court attaches to these other sources varies by jurisdiction. Secondary authority is not the law. Secondary authorities, such as legal dictionaries and encyclopedias, books and treatises, and journal articles, explain and analyze the law and help researchers understand and locate primary authorities. Question of Federal Law For matters of federal law, federal courts apply federal laws and regulations as well as precedents of federal courts in their district. If a federal court in a particular district has not ruled on a point of law, it may be persuaded by a decision of another federal district.
Identifying the rules that apply to a particular legal issue in your jurisdiction requires legal research. The process of legal research involves not only locating legal authorities, but also determining their importance. The lead authority (the law) may be mandatory or persuasive, depending on: This guide is intended to be a quick reference to the selected content of your basic legal research course package to help you review the course content and complete your assignments. The federal judicial system is divided into eleven numbered counties, the District of Columbia and the Federal Circuit. Decisions of the U.S. Supreme Court are binding on all federal courts of appeals and all federal district courts. The decisions of the courts of appeal of each of these counties are binding on the federal district courts (courts of first instance) within this circle. The content of this guide comes from the work of Professor Therese Clarke Arado, who for many years has written and updated the printed basic legal research course kits for each semester. 5) Statutes in the current codification (in order of codification) b) U.S. state constitutions, in alphabetical order by state The Supreme Court of South Carolina is our court of last resort.
Its decisions are binding on our Intermediate Court of Appeals, the South Carolina Court of Appeals, and all South Carolina courts.