Cecily Zamora
Case law can be a persuasive authority when there is no mandatory authority to cite. Persuasive authority is a tool used to find binding cases. It is primary law or secondary sources used to persuade the court to rule in a certain way in the absence of mandatory authority. Mandatory authority is primary law that is binding on the court that one is appearing before. The primary law is the actual law created by the government to be followed and enforced. The specific court that a case is in will determine which court system has authority over the issue.
| Characteristics | Values |
|---|---|
| Definition | Persuasive authority is a type of primary law or secondary source used to persuade a court to rule in a certain way in the absence of mandatory authority. |
| Purpose | To provide legal precedent in the absence of mandatory authority. |
| Binding | Persuasive authority is non-binding. |
| Jurisdiction | Persuasive authority may be used when there is little or no binding authority in a specific jurisdiction. |
| Court System | Persuasive authority may be used when there is a conflict between state and federal court systems. |
| Hierarchy | Persuasive authority may be used to find binding cases of a higher court within a specific state or circuit. |
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What You'll Learn
Persuasive authority is used to find binding cases
Persuasive authority is a type of legal authority that carries weight but does not bind a court. It is often used to refer to decisions from lower courts or courts of the same rank. For example, a decision by a lower court is persuasive authority for a higher court, and a decision by a court of one jurisdiction is persuasive authority for courts of another jurisdiction.
In the United States, the Supreme Court is the highest court, and therefore, a decision by any other court is persuasive authority for the Supreme Court. Similarly, federal courts do not bind state courts and vice versa, and decisions by courts of other states do not bind the forum state court. For instance, state court decisions typically control substantive issues of state law. In a federal court case with a state law issue, the decisions of the state supreme court would be binding, but the federal courts might treat decisions of the state court of appeals as persuasive authority.
Persuasive authority can be a useful tool for finding binding cases. For example, if you are in the 9th Circuit and come across a relevant 5th Circuit case, you can use the 5th Circuit case to find 9th Circuit authority by following specific headnote and citing reference searching techniques. This is because each district court falls under the jurisdiction of a circuit court, and the opinions of that circuit court are binding on that district court.
However, it is important to note that while persuasive authority can guide decision-making, it does not have the same weight as binding authority. Binding authority comes from higher courts in the same jurisdiction, and courts are required to follow the decisions of these higher courts. For example, a federal Supreme Court decision is binding on all lower federal courts, and a federal circuit decision binds all federal district courts within its circuit.
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Persuasive authority is non-binding primary law
The goal of legal research is to find the relevant primary law that governs a specific legal issue. Primary laws are the actual laws created by governments to be followed and enforced. They include constitutions, statutes, opinions, and regulations. While primary law is mandatory, there is also persuasive authority, which is non-binding primary law. Persuasive authority is used to persuade the court to rule in a certain direction in the absence of mandatory authority.
Persuasive authority can be used as a tool to find binding cases. For example, if a relevant case is found in another jurisdiction, it can be used to find authority within one's own jurisdiction. Similarly, if there is little or no binding authority for a specific issue in a jurisdiction, one may want to cite on-point cases outside of that jurisdiction. When citing cases that are merely persuasive, it is crucial to explain the reasoning behind the court's need to follow that precedent.
State court decisions typically control substantive issues of state law. In a federal court case with a state law issue, the decisions of the state supreme court would be binding. On the other hand, the federal courts may treat the decisions of the state court of appeals as persuasive authority. While federal law generally takes precedence over state law, there are exceptions. In some cases, both laws may apply, or only state law will apply. For example, if California law provides a higher minimum wage than federal law, the state law will be enforced.
In summary, persuasive authority is non-binding primary law that can be used to influence a court's ruling in the absence of mandatory authority. It is a valuable tool for legal research, helping to identify relevant cases and fill gaps where binding authority is lacking. However, it is important to provide justifications for following persuasive authority, particularly when citing cases from outside the jurisdiction.
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State court decisions control substantive issues of state law
Case law is considered persuasive authority when it comes from a higher court in a different jurisdiction. In the US legal system, the decisions of the US Supreme Court are binding on all federal and state courts on issues of constitutional and federal law. However, state court decisions typically control substantive issues of state law.
In a federal court case involving a state law issue, the decisions of the state supreme court would be binding. For instance, the 9th Circuit is the federal circuit court for California, so the opinions of the 9th Circuit are binding in California's federal district courts. While the decisions of the state court of appeals may be useful, federal courts might only treat them as persuasive authority.
State court decisions are particularly important when there is little or no binding authority for an issue in a particular jurisdiction. In such cases, non-binding cases from outside the jurisdiction may be cited as persuasive authority. When citing such cases, it is important to explain the reasoning behind the precedent that the court should follow.
Overall, while state court decisions control substantive issues of state law, persuasive authority can be a useful tool for finding binding cases in a particular jurisdiction.
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Federal law usually takes precedence over state law
Federal law typically takes precedence over state law. This is due to the Supremacy Clause, which states that the Constitution, federal laws, and treaties made under the authority of the United States are the supreme law of the land. This means that federal laws made by Congress under the powers granted by the Constitution take priority over conflicting state laws.
For example, in a federal court case involving a state law issue, the decisions of the state supreme court on the substance of that issue would be binding. However, decisions of the state court of appeals may be treated as persuasive authority by the federal courts, but they are not binding.
The Supremacy Clause also allows Congress to establish rules of decision that American courts must follow, even if they conflict with state laws. Congress can also restrict what state law can say on certain topics or put some topics off-limits to state law altogether, as long as these directives are authorized by the Constitution.
The interpretation and application of the Supremacy Clause are not without controversy. There is a divide in the Supreme Court over the limits of Congress's legislative powers and the extent to which states can assert sovereign immunity when faced with federal law claims.
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Persuasive authority is a tool to persuade the court to rule a certain way
Persuasive authority is a tool used by legal researchers to persuade a court to rule a certain way. It is a type of primary law or secondary source used in the absence of mandatory authority to influence a court's decision. The ultimate goal of legal research is to find the relevant primary law—such as constitutions, statutes, opinions, and regulations—that governs a specific legal issue.
Mandatory authority, or binding authority, refers to primary laws that are enforced by a particular court. For instance, in the state of California, the decisions of the California Supreme Court bind the California Courts of Appeal. However, in cases where mandatory authority is unavailable or insufficient, persuasive authority can be employed.
Persuasive authority can be used to find binding cases. For example, if a relevant case in one circuit can be located, it can be used to find authority in another circuit by following specific techniques for headnote and citing reference searching. Additionally, persuasive authority can be used to support an argument when there is little or no binding authority for a specific issue in a jurisdiction. In such cases, on-point cases from outside the jurisdiction can be cited as persuasive authority.
When citing persuasive authority, it is crucial to explain the reasoning behind the court's adherence to that precedent. This involves considering the specific circumstances of the case and the applicable laws. By providing a compelling argument and demonstrating the relevance and applicability of the cited cases, persuasive authority can influence the court's interpretation of the law and subsequent ruling.
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Frequently asked questions
Persuasive authority is primary law or secondary sources used to persuade a court to rule in a certain way in the absence of mandatory authority.
Mandatory authority is primary law that is binding on the court, whereas persuasive authority is non-binding.
You should use persuasive authority when you cannot locate mandatory authority. For example, if there is little or no binding authority for your issue in your jurisdiction, you may want to cite cases outside of your jurisdiction as persuasive authority.
