Persuasive Authority

Definition

Persuasive authority refers to legal sources that a court may consider but is not obligated to follow, as they do not have binding precedent in the jurisdiction. These sources can influence a court's decision-making process, especially when there is no applicable binding authority on a particular issue. Persuasive authority can include decisions from other jurisdictions, secondary sources, or legal commentary that helps shape legal arguments.

5 Must Know Facts For Your Next Test

1. Persuasive authority often comes into play when courts face novel issues that lack binding precedent, allowing judges to draw from other jurisdictions or sources for guidance.
2. Examples of persuasive authority include decisions from lower courts, opinions from other states' courts, and scholarly articles that analyze the law.
3. While persuasive authority can help inform a court's reasoning, it does not carry the same weight as binding authority and may be disregarded if it contradicts established law.
4. Judges may cite persuasive authority to justify their rulings or to provide a broader context for their decisions, especially in cases of first impression.
5. The effectiveness of persuasive authority often depends on its relevance and the credibility of the source, as well as how closely aligned it is with the legal principles at issue.

Review Questions

• How does persuasive authority differ from binding authority in the context of judicial decision-making?
  • Persuasive authority differs from binding authority in that it does not impose an obligation on courts to follow it; instead, it serves as a guide that judges may consider when making their rulings. Binding authority is established through statutes or higher court rulings within the same jurisdiction and must be adhered to. In contrast, persuasive authority may come from decisions made in other jurisdictions or secondary sources and can be used to support arguments but does not dictate outcomes.
• What role does persuasive authority play when a court faces a legal issue without existing binding precedent?
  • When a court encounters a legal issue lacking existing binding precedent, persuasive authority becomes particularly significant. The judge may look to similar cases from other jurisdictions or consult legal commentary for insights into how similar matters have been resolved. This can help provide a framework for reasoning and decision-making in novel cases. In this way, persuasive authority aids judges in reaching informed conclusions while navigating uncharted legal territory.
• Evaluate the importance of credibility and relevance in determining the effectiveness of persuasive authority in legal arguments.
  • The credibility and relevance of persuasive authority are crucial factors that impact its effectiveness in legal arguments. A source that is well-respected, such as a ruling from a highly regarded court or a scholarly article authored by a noted expert, will carry more weight than one from a less reputable source. Furthermore, if the persuasive authority closely aligns with the specific legal issues at hand and provides sound reasoning consistent with existing law, it is more likely to influence a court's decision. Thus, attorneys must carefully assess these aspects when employing persuasive authority in their arguments.

Related terms

Binding Authority: Legal sources that must be followed by a court within its jurisdiction, typically including statutes, regulations, and case law from higher courts.

Dicta: Statements or comments made in a judicial opinion that are not essential to the decision in the case and therefore do not have binding precedent.

Legal Commentary: Analysis or opinions provided by legal scholars or practitioners regarding laws, cases, or legal issues, which can serve as persuasive authority.