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Writing on legal authority on basis of primary sources

To be a good legal writer, the essential factors are the skills to write well and the basic understanding of law and how to interpret it. To basically do a good job one must be able to read quite a bit and have a very analytical mind. We have to do a lot of research to collect the necessary information which forms the basis for good writing. The essential factor is the primary sources. Primary sources can be broadly classified into: two.
• Case laws consisting of judicial decisions
• Enacted laws. Which includes constitution, statutes and administrative laws.


Analyzing a given problem will be an amalgamation of 1, the enacted laws that regulates the subject matter of that particular problem and 2. the decisions of cases involving similar situations and issues.
When we do a research of a particular problem we have to keep in mind first the enacted laws relevant to the given situation, but we also have to see the scope of similar relevant cases handled earlier and take an account of the decisions taken therein. If at all a particular statute or constitutional law is not given, then we have to rely on. earlier cases to provide the law on the subject.
Talking about how law works in the United States,
The system of law of United States is very similar to the law of England in that both follow the law of precedence. Both follow the common law principle. Common law is Judge- made law. What it means is that rule of law comes from the written decisions of judges who hear and decide litigations. When a case is decided by a judge it attains the status of law and becomes a precedent for future similar controversial cases. That means it has twin role. The decision resolves the litigation that is before the court and if the decision is published it becomes available for use by judge in later litigations. Since we are familiar with the structure of the court system of the United States Of America, I would like to stress upon the development of the law through the common law process.

Position of a court within the structure determines how decisions are taken as precedent. Some courts have greater value than the others. Another term we come across similar to Precedent is Stare decisis. It is the shortened form of a phrase in Latin which means “to stand by precedent and not to disturb settled points” What it means in simple words is that the court has to follow those precedents that are binding authority. The precedent becomes “the binding Authority” if the cases were decided by that court or an even higher court in the same jurisdiction.

United States have many jurisdictions so it is necessary to determine which precedents a court in each jurisdiction must follow besides its prior decision.
State Law:In the matter of state laws the state court must follow precedents from the higher court.If the trial court consists of different intermediate appellate court then it must follow precedence of the intermediate courts also.State courts are bound by the statute of that state as interpreted by the court. It is not necessary that the interpretation of the statute of one state be binding for another state.
Federal Law:The decisions of the supreme court of the United States is binding for all the courts in all jurisdictions for matters of constitutional and federal laws. For matters of Federal law court of appeals are bound by its own decisions and of the Supreme Court.The District court is not bound by the decisions of any other District court nor by decisions of any other federal court of appeal.

So in a nut shell since the common law and statutes are binding for all future litigations when we write on legal authority we should
• Identify the binding laws on the issue or problem.
• We should note the relevant statutes involved .
• Identify cases that interprets the statues.

Author:Susan Alex
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.