Gavin Howe
In the legal system, there are two types of authority that courts and lawyers use to support their arguments: binding authority and persuasive authority. These legal principles guide how courts make decisions based on precedent and influence the development of case law. Binding authority is a legal precedent that must be followed by the same or lower courts in the same jurisdiction. Persuasive authority, on the other hand, carries some weight but does not bind a court. It can come from sources such as decisions of courts in other jurisdictions, academic writing, and policy documents. Understanding the distinction between these two types of authority is crucial for interpreting and applying the law effectively.
| Characteristics | Values |
|---|---|
| Binding authority | A legal precedent that must be followed by the same or lower courts in the same jurisdiction |
| Persuasive authority | A source of law that carries some weight but does not bind a court |
| Binding authority sources | Statutes, regulations, and case law |
| Persuasive authority sources | Decisions of courts in other jurisdictions, academic writing, policy documents, Restatements, treatises, and jury instructions |
| Binding authority examples | Decisions of the U.S. Supreme Court are binding on all federal and state courts |
| Persuasive authority examples | Decisions of federal courts may be persuasive authority for state courts |
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What You'll Learn
Mandatory vs. persuasive authority
In the legal system, courts and lawyers rely on two types of authority to support their arguments: binding (or mandatory) authority and persuasive authority. These legal principles guide how courts make decisions based on precedent and influence the development of case law.
Mandatory authority, or binding authority, refers to a legal precedent that must be followed by the same or lower courts in the same jurisdiction. It is created when a higher court makes a decision on a legal issue, and the same or lower courts are bound to follow that decision when dealing with similar cases in the future. For example, all federal and state courts are bound by the decisions of the U.S. Supreme Court on U.S. Constitutional and federal law issues. Similarly, in the federal court system, each district court falls under the jurisdiction of a circuit court, and the opinions of the circuit court are binding on that district court.
Persuasive authority, on the other hand, describes a source of law that carries some weight but does not bind a court. It can include sources such as decisions of courts in other jurisdictions, academic writing, policy documents, Restatements, treatises, and jury instructions. The weight given to persuasive authority is at the judge's discretion and can be used as a guide to support legal arguments or propose new legal principles. For example, a decision by a court in Australia may be considered persuasive in a case heard in England and Wales. While persuasive authority is not binding, it can be used as a tool to find binding cases. For instance, if you are in the 9th Circuit, you can use a relevant 5th Circuit case to find 9th Circuit authority by following specific research techniques.
It is important to note that state court decisions typically control substantive issues of state law, even in federal court cases. In such cases, decisions of the state supreme court would be binding, while decisions of the state court of appeals may be considered persuasive authority.
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Binding authority and its sources
In the legal system, there are two types of authority that courts and lawyers use to support their arguments: binding authority and persuasive authority. These legal principles guide how courts make decisions based on precedent and influence the development of case law.
Binding authority is a legal precedent that must be followed by the same or lower courts within the same jurisdiction. It is created when a court of the same or higher rank makes a decision on a legal issue, and the same or lower courts are bound by that decision when deciding similar cases in the future. For example, the Supreme Court of England and Wales's decisions are binding on all lower courts in England and Wales. Similarly, in the federal court system in the United States, all federal and state courts are bound by the decisions of the U.S. Supreme Court on U.S. Constitutional and federal law issues. Each district court falls under the jurisdiction of a circuit court, and the opinions of that circuit court are binding on that district court.
Binding authority can also come from sources such as statutes, regulations, and case law. Statutes are laws passed by a legislative body, such as Congress or a state legislature, and they establish the rules and regulations that govern a particular area of law. Regulations are typically created by executive branch agencies to implement and enforce the statutes. Case law refers to the decisions of courts in previous cases, which can establish precedents that lower courts must follow.
It is important to distinguish between binding and persuasive authority, as it helps determine the weight and applicability of legal precedent in a given case. While binding authority creates a precedent that must be followed, persuasive authority does not bind a court. Instead, it carries some authoritative weight and can influence a court's decision. Persuasive authority can come from sources such as decisions of courts in other jurisdictions, academic writing, and policy documents. For example, a decision by an Australian court may be persuasive in a case heard in England and Wales. Persuasive authority can also be used to find cases that are binding.
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Persuasive authority sources
A decision by a lower court is persuasive authority for a higher court. Therefore, a decision by any other court is persuasive authority for the Supreme Court, as it is the highest court in the United States. In general, a decision by a court of the same rank is also persuasive authority. For example, trial court decisions are not binding in the same trial court. A decision by a court of one jurisdiction is persuasive authority for courts of another jurisdiction. For instance, decisions by federal courts do not bind state courts, and decisions by courts of other states do not bind the forum state court.
Other sources that are considered persuasive authority include Restatements, treatises, and jury instructions. The weight given to these sources varies among jurisdictions. While it is always best to cite controlling authority, it can sometimes be useful to cite non-binding cases as relevant persuasive authority. For instance, if there is little or no binding authority for an issue in a jurisdiction, one may want to cite on-point cases outside of that jurisdiction. When citing such cases, it is important to explain why the court should follow that precedent.
Persuasive authority can also come from academic writing and policy documents. It is up to the judge to determine the weight given to persuasive authority in their decision-making process.
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Using persuasive authority to find binding cases
Persuasive authority is a source of primary or secondary law that carries some weight but does not bind a court. It is often used to find binding cases. Whether a court decision is persuasive authority or mandatory authority depends on the rank and jurisdiction of the courts involved.
A decision by a lower court is persuasive authority for a higher court. For example, a decision by any other court is persuasive authority for the Supreme Court as it is the highest court in the United States. In general, a decision by a court of the same rank is persuasive authority. For instance, trial court decisions are not binding in the same trial court.
A decision by a court of one jurisdiction is persuasive authority for courts of another jurisdiction. For example, decisions by federal courts do not bind state courts and vice versa, and decisions by courts of other states do not bind the forum state court. State courts bind only other state courts within the state. One state court cannot bind another state court or a federal court.
While it is always best to cite controlling authority, sometimes it can be useful to cite non-binding cases as relevant persuasive authority. For example, if there is little or no binding authority for your issue in your jurisdiction, you may want to cite on-point cases outside of your jurisdiction. When citing cases that are merely persuasive, it is important to explain why the court should follow that precedent. Such explanations may include:
- Although the court in question has not decided the issue, every other court that has heard the issue has come to the same conclusion.
- The decision from the other court is based on statutory language, public policy considerations, etc., identical to what is at issue before the court.
- The decision from the other court is factually indistinguishable from the current case.
- The other decision is the most recent authority available on the topic.
Persuasive authority can be used as a tool to find cases that are binding. For example, if you are in the 9th Circuit, and you have found a relevant 5th Circuit case, you can use the 5th Circuit case to find 9th Circuit authority by following the techniques for headnote and citing reference searching discussed in the Caselaw Searching section.
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Weight and applicability of legal precedent
In the legal system, courts and lawyers rely on two types of authority to support their arguments: binding authority and persuasive authority. These legal principles guide how courts make decisions based on precedent and influence the development of case law.
Binding authority is a legal precedent that must be followed by the same or lower courts within the same jurisdiction. It is created when a higher court makes a decision on a legal issue, and the same or lower courts are bound by that decision when deciding similar future cases. For example, each district court falls under the jurisdiction of a circuit court, and the opinions of that circuit court are binding on that district court. Binding authority can also come from sources such as statutes, regulations, and case law.
Persuasive authority, on the other hand, carries some weight but does not bind a court. It can come from sources such as decisions of courts in other jurisdictions, academic writing, and policy documents. The weight given to persuasive authority is at the judge's discretion. Persuasive authority can be used as a guide to support legal arguments or propose new legal principles that may eventually become binding authority. For example, a decision by a court in Australia may be persuasive in a case heard in England and Wales. While persuasive authority is not binding, a court may choose to rely on and follow the decisions of another jurisdiction if the reasoning is persuasive.
It is important to distinguish between binding and persuasive authority to determine the weight and applicability of legal precedent in a given case. While binding authority must be followed by lower courts, persuasive authority can be used as a tool to find binding cases. For instance, if you are in the 9th Circuit and come across a relevant 5th Circuit case, you can use that case to find 9th Circuit authority. Additionally, when citing persuasive authority, it is essential to explain why the court should follow that precedent.
In summary, binding authority is a legal precedent that must be followed by lower courts in the same jurisdiction, while persuasive authority carries some weight but is not binding. Both types of authority are crucial for interpreting and applying the law effectively and determining the weight and applicability of legal precedent in a specific case.
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Frequently asked questions
Binding authority is a legal precedent that must be followed by the same or lower courts in the same jurisdiction. Persuasive authority, on the other hand, is a source of law that carries some weight but does not bind a court.
Persuasive authority can come from sources such as decisions of courts in other jurisdictions, academic writing, policy documents, Restatements, treatises, and jury instructions.
While persuasive authority is not binding, a court may choose to rely on and follow the decisions made by other jurisdictions if the reasoning is found to be persuasive. It can be used as a guide to support legal arguments or to propose new legal principles.
Binding authority is created when a higher court makes a decision on a legal issue, and the same or lower courts are bound by that decision when dealing with similar cases in the future. Sources of binding authority include statutes, regulations, and case law.
Persuasive and binding authority are crucial for interpreting and applying the law effectively. They guide how courts make decisions based on precedent and influence the development of case law. While a court is not required to follow persuasive authority, it can be used as a tool to find binding cases.
