Thursday, November 8, 2018
Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law
The hierarchy of authority – the ranking of legal authorities within binding/persuasive and primary/secondary categories – is a component of basic lawyering 101. Professor Amy J. Griffin, in her forthcoming article Dethroning the Hierarchy of Authority, however, argues that the conventional view of legal authority as a “hierarchy” is simplistic and fails to adequately capture the complex ways that practitioners and judges select and rely on authority.
Professor Griffin argues that the traditional categorization of legal authority into binary categories that are static is “significantly flawed, and seriously incongruent” with the use of authority in practice. In particular, Professor Griffin focuses on lawyers’ use of persuasive authority – which she calls “optional authority.” This category of authority has drastically expanded in recent years because the internet has made both legal and non-legal information easily accessible. This accessibility has led lawyers and judges to increasingly cite types of information previously unseen in briefs and judicial opinions – information ranging from social science authorities and empirical studies to tweets. Professor Griffin observes that despite this explosion in availability of possible optional authorities to cite, the current hierarchy of authority “offers no means of differentiating between sources as disparate as empirical social science studies and legislative history.” The article warns that without a model governing the appropriateness and authoritativeness of such sources, “the only guard against bias seems to be the adversarial design of the judicial system.”
Although commentators have previously offered suggestions regarding how lawyers should choose which optional authorities to cite in support of their arguments, Professor Griffin states that “no comprehensive view” has been articulated and argues that “we must resist the appeal of a neat objective ranking.” Instead, she proposes a “shift to a holistic, pluralistic view of legal authority.” This pluralist scheme would permit scholars to develop a theory to explain the use of optional authority and would give lawyers a better predictive model of authority. A key role of lawyers is to predict legal outcomes for clients. If lawyers do not have a theory to explain why judges choose to rely on certain optional authorities over others, then making those predictions becomes significantly more difficult. Although Professor Griffin does not offer a scheme, her article raises interesting and important questions about the weight of authority in a world where lawyers now face more choices of authority than ever. Professor Griffin concludes that “[w]e need a wider lens and more flexible framework” that permits a deeper exploration and understanding of the complexities of the weight of authority.