In
legal argument, every assertion cites authority: when lawyers know they
are losing, they attempt to cloak weak arguments in language such as
``it is clear that’’, glossing over the insufficient basis for why;
strong assertions cite controlling authority, such as a prior ruling of
the U.S. Supreme Court. The same citation requirements hold true for
judicial opinions. The American common law system is grounded in its
constitutions and legislation, but also on the principle of stare decisis,
which means a strong legal opinion will cite another, preferably
higher, controlling authority for coming down on one side or another.
In the absence of binding authority, non-binding or persuasive
authority is relied on: someone made an argument that won a case in
another jurisdiction, the judge cites that decision and the law expands
to a new jurisdiction. Opponents of such decisions with weak legal
precedent may deride them as ``judicial activism’’, but judge-made law
is a fundamental component of how our system works, and indeed, how the
legal system has managed to survive. Of course, a judge may instead
reject another non-controlling decision and cite an alternative argument
for ruling differently. Thus, competing legal doctrines scatter like
leaves in the wind until a higher court decides to consolidate and
resolve contradictory rulings. It is often possible (and enlightening)
to trace a winning argument in a high court ruling down through various
lower court decisions and ultimately arrive at the original language
source, which can be the unprecedented argument of a jurist publishing
research (and personal opinions) in some obscure law journal. Thus
judge-made law, sometimes with questionable origins, becomes the law of the
land and not always for the better.