3.2.6 IDENTIFYINGRELEVANT ANDVALIDAUTHORITIES

When you are writing a brief to a court, you are trying to convince it to do something. On a basic level, your argument consists of assertions that will convince the court to decide in your favor — if it agrees with those assertions.

When you are deciding what authorities to cite, realize that most judges are not interested in breaking new ground or making new law: They are interested in not getting reversed. Thus, part of your job is to reassure them that the result you seek is consistent with the mandatory authorities that govern their jurisdiction. Every time your brief cites an authority that is not mandatory, the judge (or the clerk) who is reading the brief may be thinking, “Why should I care about this authority?” If you are writing to a court of last resort, like the United States Supreme Court, realize that — even though that court has the power to make new law — its first instinct is to look to its own decisions for authority rather than to lower court authorities. If you are writing to a trial court or to an intermediate court of appeals, its first instinct is to look to decisions of the court or courts that have the authority to reverse its decisions.

This principle does not mean that you should ignore nonmandatory authorities; rather, it indicates that you should first identify any mandatory authorities because they will have more validity than nonmandatory authorities. The more valid the authorities you cite, the more weight the authority will have with the court. Nonmandatory authorities can persuade, but because they have less weight, you should be sure that your reader knows why he or she should care about the authority. For example, you may be able to use nonmandatory authorities to show how various courts have applied a particular rule from the mandatory authority, particularly if the lower court decisions are more on point than the decisions of the mandatory authority.

Because each case is decided based on the facts and issues unique to it, the validity of an authority can vary depending on both the court you are arguing to and the facts of the case before the court. A good way to begin is by asking yourself “what is this case about?” and then brainstorming a list of categories that your case can fit into. The items on that list can give you several different entry points for your research.

For example, suppose that you did background reading about the statute at issue in the Whitfield case, and you learned that the statute is known as the Federal Bank Robbery Act, and that it was enacted in the 1930s in reaction to notorious bank robberies and kidnappings conducted by John Dillinger; the robbers escaped capture by crossing state lines so that state authorities would have no jurisdiction. In making a list of what that case is “about,” you might come up with some of the following categories:

bank robbery forced accompaniment forcing accompanying kidnapping statutory interpretation statutory definitions federalism crime by intimidation vs. weapons 18 U.S.C. § 2113

Of course, you might identify different categories as well. The benefit of identifying categories is that it can allow you to layer your research. For example, you might start by researching cases that interpret § 2113, using that number as one of your search terms. You can filter those searches by looking at cases that talk in detail about kidnapping or intimidation, or those that focus on the meaning of the word “force” or “accompaniment.” You might start another research session by looking for cases in your mandatory jurisdiction that focus on statutory interpretation. From there, you might use filtering searches to see how the mandatory court has addressed cases in which federalism was an issue, in which statutory definitions were at issue, or in which it discussed the significance of whether or not a criminal was armed. Using this method might allow you to recognize the relevance of seemingly irrelevant authorities.

Thus, when assessing the validity of authorities during your research, consider the relevance of the facts and the legal issues, and the validity of the source of the authority. More significantly, be sure to use the abstraction ladder or other methods to help you to recognize valid sources for your arguments.

a. Relevant Facts

First, consider what types of facts might be relevant, and look for authorities that relate to those types of facts. Remember that research is recursive; you may not know what facts are legally significant until after you have completed some of your research. Keep an open mind, and revisit your client’s facts frequently (e.g., by reviewing your abstract of the record). Some cases with similar facts will be easy to recognize, but be sure to consider the different levels of similarity. This is where the lessons of the abstraction ladder become important: Thinking about your facts at various levels of abstraction can help you to recognize facts from other cases whose relevance is not apparent. If your client is seeking to ban smoking in the workplace, for example, you should not limit your research to cases in which plaintiffs tried to ban smoking in the workplace. You might look for cases dealing with other types of toxic fumes in the workplace, other types of dangers in the workplace, or other situations in which an employee or some other nongovernmental actor tried to enforce public health laws, or other laws.

As noted above, you may have to broaden your concept of what a “fact” is. Many law students think of facts as events that involve human beings — the details of a contract negotiation, a car accident, or a termination of employment. In a statutory construction case, however, the language of a statute can be a “fact” that is significant to your argument. Likewise, the way that particular language within a statute operates can also be a “fact” — or a category of facts — that you need to be aware of so that you can look for similar categories of facts when you conduct your research. In the Whitfield example above, for instance, the Court found a case to be significant because it also addressed whether or not certain language in a statute had been amended. The relevance of the case depended on the fact that the Court in the authority case was engaged in a similar act of statutory construction: Must we change our interpretation if language has evolved? Is it significant that this part of the statute has or has not been amended? These questions have nothing to do with what many would identify as the “facts” of the case that relate to the legal issue: “Does guiding someone a few feet down a hallway constitute ‘forced accompaniment’”? You must look beyond your normal understanding of what the word “fact” means to consider what tasks the court is engaging in.

b. Relevant Legal Issues

Second, consider what types of legal issues might be relevant. Obviously, when choosing authority cases, the more on point the issue, the better. If your issue involves the meaning of a federal statute, for example, cases interpreting that particular statute would certainly be relevant. But you might also consider looking for cases that have interpreted other statutes that either use similar (or identical) language or govern similar legal problems or categories of legal problems. If your client has sued under the Americans with Disabilities Act, for example, you might search for cases interpreting similar aspects of Title VII.

c. Relevant and Valid Sources i. Legal Sources

Finally, consider what types of sources might be relevant. The most obvious sources for legal authority are legislatures, state and federal agencies, and courts of law. For all of these sources, of course, the validity depends on jurisdiction, and, for courts, where it sits in the hierarchy. Thus, if you are writing to an Indiana Court of Appeals, opinions of the Indiana Supreme Court would have high relevance. The obvious rule is that mandatory authorities from the relevant jurisdiction will have the most validity with a court.

If there is no mandatory authority exactly on point, however, find out how close a mandatory court or legislative or executive body has come to addressing the relevant issue and build your argument on those authorities. If the mandatory jurisdiction has not yet considered the precise legal issue in your case, or if nonmandatory decisions or actions are much more on point than any mandatory decisions, you may wish to go beyond mandatory sources. When you decide to include citations to nonmandatory authorities, you can increase the validity of those authorities if you tie them to mandatory authorities or to rules from mandatory authorities.

Thus, if you find that there are few opinions addressing the issue in your case, and none that are on point, first find the opinions in your “mandatory court” that are most on point.

Likewise, you should cite the mandatory authority first; only then should you cite the nonmandatory authorities, noting perhaps that the courts in those cases are applying the mandatory rule or (for cases from other jurisdictions) are applying rules that are consistent with or very similar to the mandatory rule. Although, of course, the court is not obligated to follow these cases, you can lay groundwork that will help the court to find the authorities valid.¹²

Some sources can be relevant even if they do not have formal validity. If you are asking a court to decide on the meaning of federal legislation, the guidance of a federal agency can be relevant if that agency was involved in drafting regulations, enforcing the legislation, or suing to have the legislation enforced. Of course, courts often grapple with just how to assess the validity of various kinds of agency guidance.¹³ Formal regulations are issued under the authority of the Administrative Procedure Act, and courts generally make a finding of statutory ambiguity before using them to interpret statutes. A 2018 district court opinion provided a general overview of some significant aspects of federal agency authority:

An agency to which Congress has delegated authority to administer a statute is entitled to judicial deference to its views of the statute it administers. If an agency promulgates a regulation and complies with the noticeand-comment procedures defined in the Administrative Procedure Act (“APA”), 5 U.S.C. § 500, et seq., a court reviews the regulation under the two-part framework established in Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Formal adjudications by an agency are also binding on a court if the agency view passes Chevron review. See, e.g., ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 324, 114 S. Ct. 835, 127 L. Ed. 2d 152 (1994).¹⁴

If the area of law is particularly novel, you may have difficulty finding on-point cases, statutes, or other authorities. In that situation, consider whether any law review articles have been written on the subject. Although most courts would rather rely on cases in which courts have considered the impact that their decisions would have on real-life parties, they may refer to law reviews when case authorities are few or inadequate.¹⁵If you can cite to a prestigious professor from a prestigious law school, so much the better, but most courts are more interested in the writer’s expertise,¹⁶or in the legal analysis that the article presents, than in the pedigree of its author or of the journal.¹⁷

ii. “Extra-Legal” Sources

And don’t limit your research to traditional legal sources. If your case concerns an issue of public significance — and many cases argued to courts of last resort fit that definition — you may want to give the court information that will help it understand how this issue affects the public, not just the parties that are before the court.¹⁸ Although courts are traditionally restricted in their use of information to facts that have been admitted into evidence, in recent years courts have shown more and more willingness to consider “extralegal” or “legislative facts.”¹⁹Generally, courts consider adjudicative facts outside the record by taking “judicial notice” of those facts, under Federal Rule of Evidence 201. When considering legislative facts, in contrast, courts can go beyond the record to understand the broad factual context of the issues in a particular case.²⁰

For example, suppose you are representing the state in a Fourth Amendment case about the constitutionality of a state law that gives police officers the authority to order all passengers out of a vehicle at a traffic stop. If you are counsel for the state, you might be making a policy argument that the court should find the law constitutional because it will promote officer safety. To support that argument, you could look for statistics about the dangers that police officers face when conducting traffic stops, noting how often passengers in the stopped vehicles became violent or caused other problems. These authorities might persuade the court to agree with your assertion that traffic stops are dangerous situations for police officers, and thus make it more likely to decide that the state law is a valid exercise of police power.

In the Coors Brewing case discussed above, one reason the government gave for banning alcohol percentages on beer labels was its fear that consumers, especially young consumers, would base their beer-purchasing choices on the percentage of alcohol in the beer. One of the parties might cite a reputable study that analyzed beer-buying patterns of young people in states or countries in which alcohol percentages were already on the label. The conclusion of that study might convince the court that alcohol percentages on beer labels either helped or hindered consumers’ abilities to make good choices when purchasing beer. That conclusion in turn might affect the court’s decision in the case.

Of course, many of these extra-legal facts could be submitted into evidence at the trial court, but trials are usually focused on the individual parties. Often, arguments about the broad impact of the case become significant only at the appellate level. Just as with legal authorities, extralegal authorities will be more or less valid depending on the source. The reputation of the source, whether a newspaper article or a university study, will doubtless have an impact on the court’s attitude toward the validity of the information from that source. Therefore, when deciding whether to use extra-legal information, consider the source carefully.

iii. Internet Sources

The advent of the Internet is changing the way that lawyers and judges find and use legal authorities.²¹Internet research can be an effective way to bring yourself up to speed on an area of law. Be careful, however, when deciding whether to cite Internet materials in a brief. Certainly, valid authorities do not lose validity simply because they can also be found on the Internet; similarly, however, nonvalid authorities do not become valid simply because they can be called up on the computer screen of an attorney or a judge. In addition, the ever-changing content online can affect judges’ impressions of the validity of certain source material. If a judge goes to a link within a brief and does not find the cited material, he or she may question the credibility of the source, the attorney, or both. Thus, attorneys conducting legal research on the Internet should keep both validity and accessibility in mind.

There are numerous resources available on the Internet that have a high degree of validity. Many of the extra-legal sources mentioned above may also be found on the Internet. Numerous government agencies have Web pages that contain reports, research studies, or other information that courts would find useful and reliable. On the other hand, an on-point assertion from a random blog may carry little weight.²²If the Internet simply makes it easier for you to gain access to a report that would have required a trip to the library or to the state capital in days of yore, then the source may well be worth citing. If, in contrast, the source has come into existence because of the Internet, you may wish to be more circumspect. The most important consideration is the validity of the source.²³

The fact that Web pages are constantly updated makes them a wonderful research tool, but it can also hurt accessibility for those trying to access “old” citations. One scholar has labeled as “link rot” the persistent problem of links that lead the researcher to defunct Web sites.²⁴Two authors studied the 430 links included in Supreme Court opinions issued from 1995 to 2010 and found that 29 percent of them were inactive.²⁵ Thus, whenever you include a Web citation in a brief, be sure to print a copy of the material; you should also attach a copy to your brief to make sure that the court has access to the information.²⁶In addition, you may wish to copy the source to your hard drive, to a word processing file, or to both. In these ways, you make sure that the resource is preserved, should you or the court need to find it at a later date.

Assessing the possible relevance of the facts, the legal issues, and the sources of the authorities you plan to cite can help you to predict which authorities the court will find more valid, and to decide where and how to concentrate your research.