Intelligence Law School - Course 1: Lesson 2.2.3 Primary Legal Authority


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LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM


2.2 Legal Authority Generally


2.2.3 Primary Legal Authority


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Annotated Lecture Transcript

2.2.3 Primary Legal Authority

2.2.3.1 “Primary Legal Authority” Defined

Secondary authority can be very useful to help persuade judges and legal decision makers, but it is not the main focus of this lecture series.

Primary authority is what we’re focused on.

 

So what is primary authority?

Ø  Black’s Law Dictionary defines “primary authority” as legal authority that comes directly from a law-making body as well as the judicial decisions from litigated cases.[1]

 

2.2.3.2 Top-Down Creation of “Primary Legal Authority”

1)      In the federal legal system, the creation of primary authority starts with the blackletter legal rules contained in the U.S. Constitution as well as the holdings in federal judicial decisions interpreting those provisions.

2)     Next come the blackletter legal rules contained in statutes enacted by Congress pursuant to their lawmaking authority that was granted in the blackletter text of the U.S. Constitution—Article I, to be exact.

a.      The application of this statutory rule is fleshed out by the holdings in any binding federal judicial decisions interpreting these blackletter statutory provisions.

3)     And last comes the legislative rules promulgated by administrative agencies or the President pursuant to a statutory delegation of lawmaking power from Congress.

 

2.2.3.3 Holdings in Federal Judicial Decisions as Primary Legal Authority in the Common Law System of the United States

“Law” always starts with the blackletter text of primary legal sources.

Just always remember that in the common law system of the United States the holdings of federal judges on matters of legal interpretation also represent a source of primary legal authority in their own right. 

 

2.2.3.4 Significance of Distinction between Primary and Secondary Authority

So why is the distinction between primary and secondary authority so significant?

Because, any rule that qualifies as “primary authority” will be a legally binding rule that must be obeyed as a matter of law.

Primary authority is real law, the actual stuff you can get in trouble for not following.

 

Footnotes


[1] See also Black’s Law Dictionary 129 (7th ed. 1999).

 


© 2012 David Alan Jordan. All rights reserved.