The Problem of Authority

Review of Amy J. Griffin, Dethroning the Hierarchy of Authority, 97 Or. L. Rev. _______ (forthcoming)

Legal analysis differs from other forms of analysis in (at least) one important respect: We have to deal with authority. The wall between “is” and “ought” can be insurmountable when you’re standing in front of a district court judge and she’s got a U.S. Supreme Court opinion that says you lose. Maybe the Supreme Court got it wrong. It happens. But you’re not going to win with that argument to the district court judge. She’s bound to follow that controlling opinion from the Supreme Court.

But outside of that simple example—binding authority with a directly on-point holding—the wall gets a bit more blurry. How do courts resolve legal questions when no clearly binding authority exists? And how should they resolve those questions? 

Carrying a lantern into that darkness is Professor Amy Griffin’s new article, Dethroning the Hierarchy of Authority. The article attacks the binary way most lawyers conceptualize authority. In one bucket we put “binding” authority, which follows the fixed hierarchy of the courts. And in the other bucket we put so-called “persuasive” authority, which is just a jumble of everything else. Professor Griffin thinks we can do better:

We need better vocabulary, metaphors, and descriptive tools for sources used in legal argument in order to reach the more critical questions of what courts treat as law and why they do so.

Dethroning the Hierarchy at 4.

Lawyers are quite good at addressing the easy questions, like my simple Supreme Court example. The Washington Court of Appeals understands that Washington Supreme Court opinions are binding authority. And it understands that Pierce County Superior Court opinions are not. But Professor Griffin observes that beyond those easy questions, our concept authority just isn’t up to the task:

For hard legal questions, [the existing binary scheme] tells us nothing about what sources a decision-maker might rely on beyond those that are binding. The existing model ignores the element of choice, assuming rules of law found within a prescribed set of legal sources dictate legal outcomes.

Dethroning the hierarchy at 5.

A balance tilted to one side
Nobody actually weighs an opinion, do they?
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The Bluebook and New York City

Let’s say you need a new chef’s knife. So you go to Bed, Bath & Beyond and head for the kitchen section. (That’s part of the “Beyond,” I guess.) In a fancy cutlery display you see a large selection of chef’s knives. But you don’t buy any of those. Instead, you walk right past the chef’s knives and over to the cheese knives. After perusing a bit, you buy this set:

That’s a nice set of cheese knives!

Looks pretty nice! But when you get home and start preparing dinner, the cheese knives just don’t seem to do the job. It’s a total disaster! The next morning you go back to BB&B to return the knives. “They didn’t work at all! I couldn’t even slice a tomato with these things!” you complain. “And don’t even get me started on what happened when I tried to dice an onion!”

Not surprisingly, the customer service rep at BB&B isn’t sympathetic. She calmly responds, “Sir, these are cheese knives.”

Obviously, nobody would ever do anything like that. We understand that different tools have different purposes. And you shouldn’t malign a tool for not working in circumstances for which it was not designed to work. Something clearly labeled “cheese knife” should be used for cheese, not dicing onions.

But for some reason, people malign The Bluebook for this sort of thing all the time. The most recent entry in the catalog is this piece from Judge Gerald Lebovits: Cite-Seeing Part II: The Bluebook’s New York Bloopers. Judge Lebovits pulls no punches in his critique of The Bluebook’s “mistakes”: It “fails miserably when it comes to New York citations.” “Every rule and example in the Bluebook violates how a practitioner, judge, or academic should cite New York authorities.” “The Bluebook’s rule also contradicts” various state rules and statutes. And “it’s not hard to spot incorrect examples for New York in the Bluebook.”

Yikes.

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Six Suggestions for Improving The Bluebook

So there I was on Sunday evening, October 7. A glass of scotch in hand, all ready to fill out the official Bluebook questionnaire, which would allow me to suggest improvements for the forthcoming 21st edition.

A dramatic reenactment of my preparation for the survey

But then I clicked on the link. Apparently, despite previous reassurances that the survey would be open until October 8, I was too late. The survey was already expired. 

I was not pleased.

Read the Suggestions

Don’t Be a Quitter! Think About Creating Stylish Citations.

Citations are like the weather: Everyone complains about them, but nobody does anything about it!

Until now.

If you’re a reader of this blog, you’re likely interested in legal writing. And you likely realize that legal writing is full of italicized text and parenthetical information and weird abbreviations that often come between sentences—the citations. I’ve previously written about citations. But I focused mostly on the isolated, narrow issue of citation format. I was interested in the citation as a citation. My take: The Bluebook, for lack of a better word, is good.

But an excellent new paper by Professor Alexa Z. Chew (of UNC School of Law) takes a much broader and more functional approach to legal citation. You should read it. Continue reading

My Review of The Bluebook: The Reviews Are In!

Well, our long national nightmare is over. The Spring 2017 volume of the Journal of Legal Education has hit the digital newsstands; this volume includes my review essay on the latest edition of every lawyer’s favorite citation guide, The Bluebook. Early reviews of my essay have been uniformly… mediocre:

“[David Ziff] reviews the Bluebook”
Ryan Calo, UW School of Law

“Why?”
— 
Cristian Farias, Huffington Post

“Everybody knows The Bluebook sucks. What this article presupposes is—maybe it doesn’t?”
Ron FisherLatham & Watkins

“I nearly puked but I’ll still read it”
Sasha Moss, R Street Institute

“Scariest thing I’ve seen today… by far!”
Eric Segall, Georgia State University College of Law

“Anyone who wrote a 27 page book review of the Bluebook is not to be trusted.”
Jim Tyre, Electronic Frontier Foundation

Okay, so maybe those reviews are not great. But I’m pretty sure they were offered in the playful spirit shared by the essay itself. Seriously. I figured I couldn’t take myself too seriously while writing a 27-page book review of a legal citation manual. So while I certainly intended the essay to raise some important issues, I also tried to make it a fun read. I hope you enjoy it!

A Quick Post on Keyboard Shortcuts

I’ve noticed a few folks tweeting about their keyboard shortcuts for legal writing symbols, likely related to this new keyboard for lawyers. Seriously! If you’re not already using custom keyboard shortcuts in MS Word, you should be. Here’s one way to easily insert commonly used symbols into your legal writing (if you use MS Word):

1. Pull up the “Symbol” window as if you’re going to insert a symbol. Here, I’m pretending to create a shortcut for the symbol μ, because my imaginary law practice includes many briefs involving the coefficient of friction.

symbol-1

See how the “Shortcut key” is assigned as “Alt+0181”? What the heck is that? Well, we can change it by clicking on the “Shortcut Key” button. Continue reading

In Praise of Statutes (and Statues)

Today is the first day of winter quarter (or Winter Quarter, depending on how you feel about it) here at the University of Washington School of Law. For my 1L Legal Analysis, Research, and Writing class, that means we turn from common law (which we covered in the fall) to statutes. I really like this quarter, and I start the class with a general lecture on how to think about statutes. I figured some of that might be interesting to y’all out there on the interwebs, so here goes….

I think it’s easy to underestimate the difference between (1) reading and understanding case law and (2) reading and understanding statutes, especially for first-year students. During the entire fall quarter, my class discusses common law doctrines, reads cases, argues about holdings, makes predictions based on dicta, etc. When reading a case, determining the holding is partially based on what the court says, but much of it is based on the reader’s own reading between the lines. Sure, the court said any family member could recover, but that case involved a biological father-daughter relationship. Same result for a great-grandmother? What if they lived together? What about a step-father? What if they are estranged? You know the game. Testing a holding—narrowing it down to the relevant facts—is a huge part of the first quarter. And it takes a long time for many students to get into that mode of thinking.

And then—record scratch—we introduce statutes. The familiar “Okay, but what does that really mean?” method of analysis doesn’t quite work on statutes. Students comfortable divining and then applying abstract principles from a series of cases are in for a rude awakening when attempting to apply that divination skill to a statute. “Yes, the statute says ‘prevailing party,’ but what that really means is….” Nope. It means “prevailing party.” Words matter for statutes in a way they don’t for cases.

I like to illustrate the point with two different statues (yes, statues, not statutes). Here’s a familiar one:

https://commons.wikimedia.org/wiki/File:Cudrefin-justice.jpg

Fontaine de la Justice via Wikimedia Commons

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