By Jedidiah McKeehan

When we think of laws that affect us, we normally think of laws that have been passed by our legislators and signed off on by our state governor.  For example, we are not allowed to drive our cars while under the influence because there is a law (Tennessee Coded Annotated section 55-1-401) that was passed by the Tennessee legislators that says that we cannot do that.

While the legislators regularly pass laws, and are typically attempting to provide guidance, instruction, and protections with the laws they pass, they simply cannot address all situations that come up.

Because of that, judges are regularly required to make rulings on cases that are not directly addressed by a specific law.  When they do that, the decisions they make are called case law, or common law.  The two terms are generally considered interchangeable.

So, here’s an example, the law states that student loans are nondischargeable in bankruptcy.  That means that you cannot get rid of that debt by filing for bankruptcy.  However, there was a judge in New York recently who decided to let an individual discharge their debt in bankruptcy anyway.

This judge has created new case law by their decision, which actually stands in conflict with the law passed by legislators.  Which one controls?  Well, the judge’s decision may get overturned by a higher ranking judge, the legislators may pass a new law striking down the judge’s decision, or the judge’s decision may stand.

Where does someone find case law?  When you see lawyer’s offices on movies or TV shows you will see all of these fancy looking books.  Those books, presumably, hold the written decisions (case law) of various judges dating back years and years.  Lawyers used to look through those books in order to reference case law that may be applicable to the case they have before them.  Today all of those cases are online, so the law books are not necessary, but the amount of case law that exists is huge and is always getting bigger.

Generally, though, a lawyer will only need to research cases that are actually applicable to the case they are working on.  If a Tennessee lawyer is getting ready to argue their case, they may find some case law in Arizona that helps them, but nothing in Tennessee.  Out of state case law, is considered “persuasive authority,” but not, “binding authority.”  The judge can either accept or reject the arguments being made.

However, if the Tennessee lawyer finds case law in Tennessee that helps their position, that is considered, “binding authority,” and the judge deciding the case is supposed to make their ruling in line with the binding authority.  Now, judges are allowed to do whatever they want, that is why they are the judge.  Judges are allowed to reject binding authority case law and just do what they want, but they are supposed to make their decisions in line with the previously decided case law.

Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties.  He works in many areas, including criminal, personal injury, landlord-tenant, probate, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.