Authority in law

Authority and Authorities

Virginia Law Review, Forthcoming

FREDERICK SCHAUER, Harvard University – John F. Kennedy School of Government

Although there is a rich jurisprudential literature dealing with the concept of authority in law, the lessons from this jurisprudential tradition have never been connected with the practice by which authorities – cases, statutes, constitutions, regulations, articles, and books, primarily – are a central feature of common law legal argument, legal reasoning, and judicial decision-making. This disconnect between thinking about the nature of authority and reflecting on law’s use of authorities has become even more troublesome of late, because controversies about the citation of foreign law, the increasing use of no-citation and no-precedential-effect rules in federal and state courts, and even such seemingly trivial matters as whether lawyers, judges and legal scholars should cite or rely on Wikipedia all raise central questions about the idea of authority and its special place in legal reasoning. In seeking to close this gap between the jurisprudential lessons and their contemporary application, this Essay casts doubt on the traditional dichotomy between binding and persuasive authority, seeks to understand the distinction among prohibited, permissive, and mandatory legal sources, and attempts to explain the process by which so-called authorities gain (and sometimes lose) their authoritative status.

 

Source:  LSN Jurisprudence & Legal Philosophy APS Vol. 9 No. 29,  08/15/2008

Reconfiguring Law Reports and the Concept of Precedent for a Digital Age

One of the joys of my job is that I get to see everything new that comes into the library — every new book and every journal issue passes my desk before finding a home in the stacks.  Today volume 53, issue #1 of the Villanova Law Review was in my pile and I discovered this terrific article by Peter W. Martin (Legal Research Plus is a fan of his, see earlier post, “Finding and Citing the ‘Unimportant’ Decisions of the U.S. Courts of Appeals.”).  The present article is also a Legal Scholarship Network paper, but somehow I missed it there (so having print subscriptions is a good redundancy).

The Legal Scholarship Network page includes this abstract:

Adherence to the “rule of law” entails a strong commitment to consistency – a belief that throughout a jurisdiction and across time judges should treat like cases alike. For over a century, the U.S. judiciary’s pursuit of this aim has relied principally upon print law reports. With unsettling rapidity, digital technology has dislodged that system, in practical fact, if not yet in the way lawyers and judges talk and think about case law. This article explores gains one might hope for from a “judicial consistency” system liberated from the constraints of print, likely affects on concepts of precedent, as well as challenges and forces of resistance standing in the way of change.

Professor Martin divides his article thusly:

I. Introduction

II. Precedent Dissemination in the Pre-Digital Era

     A. Public Law Reports

     B.  Public Law Libraries

     C. Commercial Law Reports: The National Reporter System

     D. Unpublished Appellate Decisions

     E.  The Disappearance of Independent State-Published Reports

III. The Arrival of Virtual Law Reports and Virtual Law Libraries

     A. Lexis and Westlaw

     B. New Players in This New Environment

IV. The Problematic and Costly Status Quo

     A. Costs or Inefficiences Resulting from the Continued Dominance of Print Concepts and Practices

 1. Citation Norms Still Dependent on Print

 2. Public Accessible Digital Opinions: Neither Official Nor Final

 3. Risk of Inconsistent Versions

 4. The Temptation to Trade Privileged Data Access or Official Status for Online Services

 5. Market Dominance Reinforced, Competition Inhibited

     B. Simple Means for Court Systems to Re-Establish Public Control Over the Dissemination of Their   Precedent

V. Opportunities for Richer and More Expansive Conception of Precedent Once Digital Dissemination Displaces Print as the Official Channel.

     A. Removal of the Sharp Dichotomy Between Decisions That Are Published and Those That Are Not

     B. Inclusion of Trial Court Decisions in the Flow of Precedent

     C. Opinions Structured Not Merely For Print But For Digital Distribution, Navigation and Search

     D. Precedent Augmented by Related Data

     E. Opinions Employing More Than Text

VI. Institutional Inhibitions and Sources of Resistance

VII. Conclusion