Years ago, in the Jurassic period, I attended law school in the South. Despite my Southern roots, I would not characterize myself as a Southerner in that era. Gathered for one of the earliest classes, I encountered the first of several professors who enjoyed the Socratic method. It was alien to me and took some getting used to. It is essentially the professor interrogating the student. It takes some students a while to comprehend that there is no right answer to any of the questions and the process is more torture than teaching. Those who relish in it might perhaps benefit from some counseling.
One early encounter will stick forever in my mind. A young man named Dave Galyon was being interrogated by Professor Craig Callen. Professor Callen reveled in the role of grand inquisitor, was spiteful and hurtful in his approach, and was not well-liked. Eventually, Mr. Callen noted regarding one of the responses "That dog won't hunt." Mr. Galyon, the quicker wit of the two (by far), responded deadpan "Sorry professor, that is the only dog I've got."
A lesson for law students and lawyers is that the job is to make an argument. Judges and courts are rarely looking for, or persuaded by, lawyer opinions. They seek authority. That can come in many forms, stare decisis is one. See Precedent and Statutes (August 2023). Another way to view this was voiced by W. Edward Deming "In God we trust, all others bring data." We might rephrase it here as "In God we trust, all others bring authority."
Many legal scholars divide authority into two main categories: "primary" and "secondary." My school of thought also includes the dreaded "tertiary." I include some further latitude in this description and prefer "tertiary and beyond."
Beyond this division into categories, lawyers then discuss whether authority is mandatory and binding or whether it is only persuasive. If mandatory, the court is theoretically obligated to apply that to a dispute. If persuasive, then it may choose whether to apply it or not. Early in the process of legal training, these two distinctions are more important than they are in the real world. As one matures, there comes a realization that courts can often do as they wish and are not actually "bound" or obligated in any manner. As we age, perhaps we see that more clearly and readily in our analysis of decisions.
In one illustrative example, the illustrious Richard Sicking of Florida was reportedly asked in an oral argument, essentially, "What can we do?" Mr. Sicking is said to have replied, essentially, "You are the Supreme Court, you can do whatever you want." Not the legal answer. Perhaps not even a valid answer to some. But an answer the court both wanted to hear and took to heart. In that instance, the court indeed did whatever it wanted, and to some, their conclusions were without the law, the authority. As Deming suggested, when you are God there is less need for imprimatur.
For more on being right, see Recent Decisions May Caution Supervisors (September 2016). Mr. Justice Jackson's infamous quote on the authority of courts is a must-read for those who would study the law.
In American law, it is generally accepted that there is a "hierarchy" of laws. This places at the apex the constitutions (federal and state), then statutes, judicial opinions, and administrative regulations. One might see congruity in this as regards the foundations of America. "We the people" formed government, and it is from us that government receives its power, through the constitution(s). The people are the apex, endowed by their creator with inalienable rights. The people cede some degree of those rights in granting authority or power to government. Government should not take power, but if needed should seek it from us.
I remind my students persistently that their rights are inherent ("existing in something as a permanent, essential, or characteristic attribute"). We discuss how Americans give up their rights, and have persistently through my time in this country. When? Usually when there is fear. We trade our rights for perceptions of safety. Ben Franklin spotted this early on. His thoughts have had their critics, but I have seen it over and over.
It is the people who ratified the United States Constitution, and those of the states. It is the people who thus empowered legislatures to act on their behalf in a representative capacity to consider issues and enact statutes. As an extension of "we," as delegates of "we," it is appropriate that their actions are second in the hierarchy.
It is for the courts to interpret those laws. With no disrespect to Mr. Sicking, I would suggest instead that courts are bound in this regard to remain true to the authority "we the people" have granted to them in that constitutional process. As kids today might say, "to stay in their lane." As we did not empower courts to "make" law, courts should respect the scope of the authority "we" delegated to them and interpret law (constitutions and statutes).
And, having granted, specifically, authority to those two constitutional branches, we might readily see that when the legislature delegates its authority to the Executive branch, then administrative regulations may result. The constitutions empower the Executive branch for its core functions. But it is the legislative delegation of authority to administrative agencies, through "enabling statutes" that lies at the root of broad administrative authority.
We see that "we" did not create administrative agencies. Those branches "we" created, in turn, created and empowered administrative agencies and imbued them with power (a subset of the power "we" originally conveyed). Thus, their inferiority to both legislatures and courst is patent and we might thus refer to the constitutional empowerment of legislatures and courts as primary, and the legislative delegation as creating a secondary Executive authority.
In this hierarchy, we see a symmetry:
- People - delegating through and empowering by Constitution
- Legislatures - defining and delegating through elected representatives of the people
- Courts - defining and interpreting through appointed (and perhaps elected) judges, constitutionally defined
- Regulators - defining and interpreting through secondary authority delegated to them secondarily
The hierarchy of law is patently consistent with the source. We exalt that which is of the people first, their representatives second, the interpretations third, and the actions of appointed or hired regulators last. In any argument, it is best to have the Constitution on your side, without such imprimatur, the advocate descends, extends, to the rungs below. This progression, or perhaps more aptly regression, should be in order.
In other words, if the Constitution is clear and on your side, stick with that argument. There is no need for an explanation of how some regulation also supports your point. If a statute wins the day, there is no need perhaps for decisional law. But, as a legal scholar recently reminded me, the process of legal education in America exalts the decisional law. The lure of case law is intertwined in the roots from the first day of law school and infects the majority of coursework. The textbooks are largely based on the wise decisions of various courts and ignore the primary constitutions and statutes.
When courts consider questions and disputes, it is thus appropriate to consider the Constitution. In a sound example, the Florida Supreme Court in 2004 addressed procedural rules for workers' compensation and concluded it had no authority for such rules. Despite an array of precedents (multiple prior court decisions) in which it had adopted and exercised such authority, despite legislative action in which there had been inappropriate delegation of authority, the court looked first to the Constitution. It concluded in that hierarchy that it lacked authority and that it always had.
Students are trained or even indoctrinated to go first to the decisions of the courts. In making an argument, they are taught the method of "that court interpreted the law this way, so should you." It is not that those interpretations may not be controlling, they may. It is not that those interpretations may not be persuasive, they may. It is, instead, that those interpretations are third on a list we have come to accept, and shifting to the third choice without consideration of the first two may be untoward at best and even unwise.
I recently received an email from a lawyer. He was essentially asking how to find one of these blog posts. I forget the point, but the essence was the lawyer was in a dispute and apparently intended to refer his opponent (and perhaps an adjudicator) to this blog. I responded with a link to that blog post, and to the foundation upon which it rested. I reminded that it is the authority in the blog that one might argue, and less likely the blog itself.
Stated differently, if you wish to argue that the Supreme Court can both be wrong and can rectify its mistakes, cite Amends., 891 So. 2d 474 (Fla. 2004) instead of citing this (or any) blog. This blog is not authority, or at best is somewhere south of secondary (perhaps very far south). It might be complimentary to refer to it as tertiary. But, the Supreme Court's analysis in Amends.,(2) might just carry your argument. Before you go there, perhaps you might instead argue the Constitution (1) that the court cited there. The tertiary (blog) might help one to understand, guide one to better tools, but is not likely to be persuasive.
Of the roughly eight billion people on this planet, you might find that precisely two care about what is written here (Thanks Mom). But, it is possible that you would not even persuade me with citation to one of my posts. In short, cite this blog when you are at your wit's end when there is nothing else, when you are utterly at a loss. In other words, if it is "the only dog you have," well then do as you must. But know that when you do you may telegraph to the listener just how desperate for authority you are.
Several years ago, while attending a WCI conference, I was present for the Zehmer Moot Court final when a tremendous team from my alma mater took center stage in the final round. An amazing argument ensued. In the course of their victory, that team cited this blog. See An Amazing Monday at WCI (August 2016). I was admittedly flattered, but I cautioned them after, as above.
After this post was drafted and set for publication, I attended WCI 2023. In the midst of the chaos that is my course each year at WCI, my phone alerted. An attendee texted that this blog had just been cited in the live oral argument presentation down the hall. This, I am told, drew laughter from the audience and bench. I am certain that was the intent. There is power in levity, which is too often misunderstood and periodically misinterpreted. I might be flattered by the reference. But I assure you that no court will likely be persuaded by it.
This is a blog. A rambling and some say often incoherent, exposition of my thoughts. If you find it interesting, that makes me proud. If you find it helpful, that is gratifying. If you think it is legal authority, perhaps think again.
