Sources of Law and the Hierarchy of Authority: every key term you need (+ practice quiz)
25 flashcard terms for Legal Research and Writing Topic 1, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
The law itself rather than commentary about it: constitutions, statutes, ordinances, administrative regulations, and judicial opinions. Only primary authority can bind a court.
Secondary authority
Material that explains, criticizes, or collects the law without being law: treatises, law review articles, legal encyclopedias, practice guides, and restatements of the law.
Binding authority
Primary authority a court must follow because it comes from a superior court in the same jurisdiction or from the jurisdiction's own constitution or statutes. Also called mandatory authority.
Persuasive authority
Authority a court may follow but is free to reject, such as decisions of other jurisdictions, lower courts, dicta, concurrences, dissents, and all secondary sources.
Stare decisis
The principle that a court should stand by decided points and follow prior holdings on the same question, giving the law stability and making outcomes predictable for planning parties.
Holding
The court's resolution of a legal issue actually presented and necessary to the judgment, stated at the level of generality the facts and reasoning support. Only the holding binds later courts.
Dictum
A statement in an opinion not necessary to resolve the issue before the court, such as commentary on hypothetical facts. Persuasive only, though dicta from a high court often carries weight.
Jurisdiction of a court
The court's power to hear a matter, combining subject matter jurisdiction over the type of claim with personal jurisdiction over the parties. Authority binds only within a jurisdiction.
Federal question jurisdiction
Federal trial court power over civil actions arising under the Constitution, federal statutes, or treaties, conferred by 28 U.S.C. 1331 and tested by the plaintiff's well pleaded complaint.
Diversity jurisdiction
Federal trial court power over suits between citizens of different states where the amount in controversy exceeds the statutory threshold; the court applies state substantive law.
Erie doctrine
In diversity cases a federal court applies state substantive law and federal procedural law, so a researcher must find and follow the forum state's decisions on the substantive question.
Court of last resort
The highest court in a jurisdiction, whose decisions bind every court below it in that system. Its opinions are the strongest primary authority a memo can cite on a state law issue.
Intermediate appellate court
A mid level reviewing court whose published decisions bind trial courts in its territory but not sister divisions or the court of last resort, which may still overrule them.
Unpublished opinion
A decision designated non precedential by the issuing court. Federal Rule of Appellate Procedure 32.1 permits citation of many recent federal opinions, but local rules govern their weight.
Legislative history
Committee reports, hearing transcripts, floor statements, and bill drafts generated as a statute moved through the legislature; used to argue purpose but never binding by itself.
Administrative regulation
A rule issued by an agency under delegated statutory power. Validly promulgated regulations have the force of law and are primary authority within the agency's grant.
Common law
Doctrine built case by case through judicial decisions rather than enacted text. Courts may extend, narrow, or abandon common law rules absent contrary statute.
Enacted law
Text adopted by a legislature or electorate, including constitutions, statutes, ordinances, and court rules. Enacted law displaces inconsistent common law within its reach.
Supremacy and preemption
Under the Supremacy Clause valid federal law displaces conflicting state law, so a researcher must check whether a federal statute expressly or impliedly preempts the state rule at issue.
Weight of authority
The relative persuasive force of a source, driven by the deciding court's level, the recency of the decision, factual similarity, reasoning quality, and whether the opinion is published.
Split of authority
A disagreement among jurisdictions or among panels within one jurisdiction on the same legal question; a memo must name the split and predict which side the forum will adopt.
Case of first impression
A question no court in the jurisdiction has decided. Advocacy relies on analogous in state doctrine, sister state decisions, policy, and secondary authority to fill the gap.
Restatement of the Law
An American Law Institute synthesis of common law doctrine. Secondary unless a court adopts a section, at which point the adopting opinion, not the Restatement, becomes the binding source.
Treatise
A scholarly book covering a legal field in depth. Useful early for background, vocabulary, and citations to leading cases, but never a substitute for the primary authority it collects.
Legal encyclopedia
A broad alphabetical survey such as a national or state encyclopedia; a fast orientation tool for an unfamiliar area that supplies terminology and footnote leads to primary sources.