6.5.2 Distinguishing Between Authorities and Sources

Although this text, and many legal writers, often refer to all cases, statutes, and the like as “authorities,” the reality is that some are only “sources”: They contain information that the court may find interesting and relevant, but the source has no authority over the court reading the brief.

I do not mean to imply that you can cite only to cases, for example, that are written by authoritative courts. Rather, you need to recognize that there are at least three different possible meanings for a citation, some of which may overlap. The citation may mean simply, “I am not the person who first said or thought of this statement.” This kind of citation is used to give appropriate credit to the originator of an idea and to avoid charges of plagiarism. A citation may also mean, “Here is the source of the law, facts, or policy I just mentioned, so you can find it if you want.” This kind of citation — and its accuracy — is very important for judges and their clerks. Finally, a citation can mean, “This statement is the law.” This use of citation is very important for the brief writer because it is used to justify and support legal arguments: In this situation, the writer is citing not merely a source, but an authority.

Unfortunately, the same citation forms are used for all three of these categories of citations, and so brief writers must be sure that their text makes the distinction. If the writer says nothing, the reader’s instinct is to presume that a cited statement is authoritative, and the reader may be startled or frustrated when he or she looks at the citation and realizes that the cited case (or other source) is not authoritative.

Writers who quote or paraphrase relevant legal assertions from law review articles and nonmandatory courts must make the necessary distinction by introducing the material with a phrase indicating that an authoritative court did not make the statement.

BAD EXAMPLES

Refusing to allow individual liability for supervisors under Title VII is “manifestly inconsistent” with Title VII’s “underlying rationale and primary goals.” Tracy L. Gonos, A Policy Analysis of Individual Liability — The Case for Amending Title VII to Hold Individuals Personally Liable for Their Illegal Discriminatory Actions, 2 N.Y.U. J. Legis. & Pub. Poly. 265, 270 (1998-1999). With Title VII, Congress intended not only to make discriminatory acts by both employers and their agents actionable, but also to make “those who discriminate” — both employers and their agents — jointly and severally liable for their discriminatory acts. Wyss v. General Dynamics Corp., 24 F. Supp. 2d 202, 206 (D.R.I. 1998) (citation omitted).

With both of these examples, the statements are relevant legal assertions that are followed by a citation and are not preceded by a qualifier. In both situations, the reader would instinctively presume that the citation provides authority for the validity of the statement, and would be frustrated to see the nonauthoritative citation following the statement. To avoid this problem, simply use qualifying language that reveals that the source is not authoritative. Generally, the best way to do this is to mention or refer to the source; you need not announce to the court that a particular source is not authoritative:

BAD EXAMPLES

Although not authoritative, a commentator has noted that refusing to allow individual liability for supervisors under Title VII is “manifestly inconsistent” with Title VII’s “underlying rationale and primary goals.” Tracy L. Gonos, A Policy Analysis of Individual Liability — The Case for Amending Title VII to Hold Individuals Personally Liable for Their Illegal Discriminatory Actions, 2 N.Y.U.

The judge or his or her clerk knows that commentators and nonauthoritative courts are only persuasive authority. A better — and more elegant —way to make them aware of the nonauthoritative nature of the statement is to succinctly reveal the source in text. If possible, you should also give the court a reason to find value in the statement:

GOOD EXAMPLES

One commentator has argued that refusing to allow individual liability for supervisors under Title VII is “manifestly inconsistent” with Title VII’s “underlying rationale and primary goals.” Tracy L. Gonos, A Policy Analysis of Individual Liability — The Case for Amending Title VII to Hold Individuals Personally Liable for Their Illegal Discriminatory Actions, 2 N.Y.U. J. Legis. & Pub. Poly. 265, 270 (1998-1999). Title VII’s underlying rationale is revealed in Section....

Another district court in the First Circuit has faced this same issue and agreed that Congress intended to make discriminatory acts by both employers and their agents actionable under Title VII. Wyss v. General Dynamics Corp., 24 F. Supp. 2d 202, 206 (D.R.I. 1998) (citation omitted). That court further noted that Congress also intended to make “those who discriminate” — both employers and their agents — jointly and severally liable for their discriminatory acts. Id.

In the first example, the writer tries to increase the value of the source by tying its assertion to specific statutory language. In the second example, the writer tells the court why it should care about this nonauthoritative source by stating that the court was addressing the same issue as the issue the court is currently addressing. Admittedly, citing to a mandatory authority is almost always preferable. When other citations are necessary, however, the practical brief writer does not try to hide the use of nonmandatory authority, but instead uses effective writing techniques to try to increase the value of nonmandatory sources.