An unidentified reader wrote in to follow up on my earlier post about lawyers and prestige:
What no one has mentioned in this discussion is the observation that hierarchy and status not only exists in the social world surrounding the law, but also exists internal to the law itself. For example, certain types of law (e.g. constitutional or federal) is supreme over other law (e.g. state or municipal), and the pronouncements of certain courts (e.g. U.S. Supreme or DC Circuit En Banque) are more authoritative than the pronouncements of other courts (e.g. District Court or panel of the Sixth Circuit). Moving away from the “primary sources” of law, hierarchy exists in the secondary literature as well. An argument advanced in “Wright and Miller Federal Practice” or the Harvard Law Review is more authoritative than one presented in “Gilbert’s legal Outlines” or in a lesser law review. In fact, one of the surest signs of a novice lawyer is that her written briefs demonstrate a lack of familiarity with the hierarchical structure of the law — e.g. citing certain courts when others should be cited. It is easy to imagine that this status consciousness spills outward from the law into the social world surrounding it. If you would prefer to cite the DC Circuit Court of Appeals rather than a Louisiana state court in a legal brief, you may come to prefer hiring a former DC Circuit clerk rather than a clerk from a Louisiana state court.
Hierarchy is an innate feature of the American court system and a prerequisite for a system of appellate review. While I think the relative authority of treatises depends as much on innate quality more than any other factor (Wright and Miller are more authoritative than Glannon because of the text), the relative quality and authority of law reviews is a function of prestige. Harvard Law Review (and the other top law reviews) include more authoritative articles because they have their pick of top scholarship to print, and the result is a feedback cycle reinforcing the prestige of the top law reviews.
Although Eugene Volokh advises bloggers to refrain from posting email, I am posting this email in its entirety not only because it is cogent and succinct, but also because I would like to know who sent it.
