Assess Authoritative Weight of Sources - Next Generation Bar Exam

1. A trial court in State A must decide a question of State A law. It has a State A intermediate appellate decision and a State B supreme court decision reaching the opposite result. Which controls?

   The State A intermediate appellate decision. It is mandatory authority within State A; the State B decision is only persuasive.

2. What is persuasive authority?

   Authority a court may consider but is not bound to follow. Examples include decisions of courts in other jurisdictions, dicta, and secondary sources.

3. What is mandatory authority?

   Primary authority that a court in the jurisdiction must follow. Examples include the jurisdiction's own statutes and decisions of higher courts in the same judicial hierarchy.

4. What is the precedential weight of an unpublished federal appellate opinion?

   It is generally nonprecedential, though FRAP 32.1 permits its citation. Each circuit's local rules determine the weight given to such opinions.

5. When a statute and a prior judicial decision conflict, which controls?

   The later-enacted statute, unless the decision rests on constitutional grounds. A legislature may displace common-law rules but cannot override a constitutional holding by statute.

6. A federal district court in the Ninth Circuit is considering a Second Circuit opinion directly on point. What is that opinion's weight?

   Persuasive only. A district court is bound only by its own circuit and the Supreme Court.

7. What is the binding effect of a state supreme court's interpretation of state law on a federal court?

   It is binding on the federal court. The state's highest court is the final authority on the meaning of state law.

8. What is the authoritative weight of a Restatement section?

   It is secondary authority, unless a court in the jurisdiction has adopted it. Once adopted by the jurisdiction's highest court, the stated rule becomes part of that jurisdiction's law.

9. What is the binding effect of a federal court of appeals decision on a state court interpreting federal law?

   It is persuasive only. State courts are bound on federal questions only by the United States Supreme Court.

10. Under vertical stare decisis, which decisions bind a federal district court?

    Decisions of its own court of appeals and of the United States Supreme Court. Decisions of other circuits and other district courts are persuasive only.

11. What is the authoritative weight of dicta in a judicial opinion?

    It is persuasive, not binding. Only the holding, the rule necessary to decide the case, binds later courts.

12. What is the difference between primary and secondary legal authority?

    Primary authority is the law itself; secondary authority explains or analyzes the law. Constitutions, statutes, regulations, and judicial opinions are primary; treatises, law reviews, and Restatements are secondary.

13. What is the precedential weight of a plurality opinion of the Supreme Court?

    Under Marks v. United States, the holding is the position taken on the narrowest grounds by justices concurring in the judgment. A plurality's reasoning, as such, does not command a majority.

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