5.3 Constitutional Law and Case Law

Constitutional law and case law are the two “unwritten-looking” sources that still bind a filing. A statute you can point to in the United States Code. A constitutional limit or a controlling opinion is just as much primary authority — and the PCCE will ask which one wins when they collide.

The Constitution as supreme law

The United States Constitution is the supreme written law of the national government. It creates the branches, enumerates (and limits) federal power, reserves a large residuum to the states and the people (Tenth Amendment), and then, through amendments, adds individual rights. Article VI, Clause 2 — the Supremacy Clause — says the Constitution, federal statutes made in pursuance of it, and treaties are “the supreme Law of the Land,” and that state judges are bound thereby, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Preemption is the working name for that clash. If a valid federal statute occupies a field or directly conflicts with a state statute, the state statute yields. A county ordinance cannot save the state statute. “Whichever law was passed more recently” is not the test. A state constitution can give more protection than the federal floor; it cannot authorize what the federal Constitution forbids or nullify a valid federal statute.

Judicial review, from Marbury v. Madison, is how courts enforce that hierarchy. A court does not “repeal” a statute the way a legislature does. It refuses to give the unconstitutional command effect in the case before it, and the opinion then binds lower courts as precedent.

Clauses that show up for paralegals

You do not need a constitutional-law seminar. You do need the clauses that appear in intake memos, suppression motions, civil-rights complaints, and employment files. Deep criminal procedure — warrant exceptions, Miranda applications, confrontation minutiae — is Chapter 14. Learn the labels now so those later items have a home.

Incorporation is the doctrine that most Bill of Rights guarantees now apply to the states through the Fourteenth Amendment’s Due Process Clause. On a national exam, do not say “the Fifth Amendment’s jury-civil guarantee applies in every state court” — the Seventh Amendment is the famous incorporation holdout. Do say that state actors must give due process and equal protection, and that a state criminal prosecution is hemmed in by the Fourth, the privilege against self-incrimination, and the Sixth.

42 U.S.C. § 1983 is the statute a civil plaintiff often uses to sue a state actor for a constitutional violation. A Bivens action is the narrower implied counterpart against some federal officers. Those captions are civil even though the underlying facts may be a search or an arrest.

Case law, common law, and stare decisis

Case law is law announced in judicial opinions. Common law is the subset (and the historical method) of judge-made rules — negligence elements, many contract doctrines, a large body of property law — that courts developed without a statute and still apply unless a statute displaces them. A statute can abolish or modify a common-law rule. A court cannot repeal a clear statute because it prefers the old common-law result.

Stare decisis (“to stand by things decided”) is the doctrine that a court follows earlier decisions. Vertical stare decisis is strict: a lower court follows a higher court in the same system. Horizontal stare decisis is a court following its own prior decisions; the Supreme Court can overrule itself, and circuit courts sometimes sit en banc to overrule a panel. Distinguishing a case on its facts is not the same as refusing to follow it.

Anatomy of an opinion

A published appellate opinion usually contains facts, a procedural history, one or more legal issues, reasoning, a holding, and a disposition (affirmed, reversed, vacated, remanded). Learn the inner labels the exam uses:

• The holding is the legal rule necessary to the result on the facts before the court. That is what later courts are bound to follow.
• Dicta (singular dictum) are the rest — asides, hypotheticals, and commentary not necessary to the decision. Dicta can be persuasive. They are not the holding.
• A majority opinion is joined by more than half of the judges who heard the case. It is the law of the case and, if published by a court that binds you, the law you cite as mandatory.
• A plurality announces the judgment but no single reasoning commands a majority. Later courts have to read it carefully; sometimes only the result is clear.
• A concurrence agrees with the result but offers different or additional reasons. It is not the majority rule unless later courts adopt it.
• A dissent disagrees with the result. It binds no one. It is a roadmap for a future overruling or a certiorari petition.
• Per curiam means “by the court” — an unsigned opinion, often short.
• En banc means the full court (or a designated larger panel), used to resolve panel conflicts or questions of exceptional importance.

A published (precedential) circuit opinion binds the district courts in that circuit. Many unpublished or “memorandum” dispositions are not binding, though Federal Rule of Appellate Procedure 32.1 allows citation of unpublished federal opinions issued on or after January 1, 2007. Do not treat an unpublished out-of-circuit memorandum as if it overruled your circuit’s published law.

Binding versus persuasive authority

Mandatory (binding) authority is authority the court must follow. Persuasive authority is authority the court may follow if the reasoning is sound.

For a U.S. District Judge in the Central District of California deciding a federal question:

Flip the system for a state trial judge on a state-law issue: that judge is bound by that state’s high court (and by the intermediate appellate court for that district, in states that treat those decisions as binding). A sister-state high court is persuasive, not mandatory. A federal district court deciding a state-law claim under diversity jurisdiction must follow the state’s highest court on that state’s law (the Erie idea). It does not get to prefer the Fifth Circuit’s guess about California law over the California Supreme Court.

That is the designed PCCE picture. A later, well-reasoned Fifth Circuit opinion does not overrule the Ninth Circuit nationwide. Only the Supreme Court (or the Ninth Circuit itself, often en banc) can free a California district judge from published Ninth Circuit law. When you shepardize or KeyCite in Chapter 6, you are looking for exactly this: is the case still good law in the court that binds us?

Worked path. The research question is whether a particular federal limitations rule is tolled. The Ninth Circuit said yes in a 2018 published opinion. The Fifth Circuit said no in 2023. The California district judge follows the 2018 Ninth Circuit holding. The 2023 Fifth Circuit case goes in a “persuasive / contrary” paragraph, not in the “this court is bound” paragraph. If the only on-point discussion in the Ninth Circuit opinion is a footnote speculating about a hypothetical plaintiff, that footnote is dicta and the district judge must say so rather than pretend it is a holding.