Persuasive precedent
Encyclopedia
Persuasive precedent is precedent
or other legal writing that is related to the case at hand but is not a binding precedent
on the court under common law
legal systems
such as English law
. However, persuasive authority may guide the judge in making the decision in the instant case. Persuasive precedent may come from a number of sources such as lower courts, "horizontal" courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil law
and pluralist
systems, as under Scots law
, precedent is not binding but case law
is taken into account by the courts.
in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit
as persuasive authority.
for one district could consider a ruling issued by an appeals court in another district.
The obiter dicta is usually, as its translation "other things said", but due to the high number of judges and several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the decision).
For this reason, the obiter dicta may usually be taken into consideration.
dissent as a rationale for ruling on the case at hand.
It is controversial whether it is appropriate for a U.S. court to consider foreign law or precedents. The Supreme Court splits on this issue. In Atkins v. Virginia
, for example, the majority cited the fact that the European Union
forbid death penalty as part of their reasoning, while Chief Justice Rehnquist denounced the "Court's decision to place weight on foreign laws." The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and "reaffirming American independence."
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
or other legal writing that is related to the case at hand but is not a binding precedent
Binding precedent
In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...
on the court under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal systems
Legal systems of the world
The legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
such as English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. However, persuasive authority may guide the judge in making the decision in the instant case. Persuasive precedent may come from a number of sources such as lower courts, "horizontal" courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and pluralist
Legal pluralism
Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems...
systems, as under Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
, precedent is not binding but case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
is taken into account by the courts.
Lower Courts
A lower court's opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.Higher Courts in other Circuits
A court may consider the ruling of a higher court that is not binding. For example, a district courtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
as persuasive authority.
Horizontal Courts
Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate courtAppellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
for one district could consider a ruling issued by an appeals court in another district.
Statements made in obiter dicta
Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts.The obiter dicta is usually, as its translation "other things said", but due to the high number of judges and several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the decision).
For this reason, the obiter dicta may usually be taken into consideration.
A Dissenting Opinion
A case decided by a multi-judge panel could result in a split decision. While only the majority opinion is considered precedential, an outvoted judge can still publish a dissenting opinion. A judge in a subsequent case, particularly in a different jurisdiction, could find the dissenting judge’s reasoning persuasive. In the jurisdiction of the original decision, however, a judge should only overturn the holding of a court lower or equivalent in the hierarchy. A district court, for example, could not rely on a Supreme CourtSupreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
dissent as a rationale for ruling on the case at hand.
Treatises, Restatements, Law Review Articles
Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings will vary widely with elements such as the reputation of the author and the relevance of the argumentCourts in other countries
An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example Canada, Australia, or New Zealand) and, to some extent, the United States.It is controversial whether it is appropriate for a U.S. court to consider foreign law or precedents. The Supreme Court splits on this issue. In Atkins v. Virginia
Atkins v. Virginia
Atkins v. Virginia, , is a case in which the Supreme Court of the United States ruled 6-3 that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments.-The case:...
, for example, the majority cited the fact that the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
forbid death penalty as part of their reasoning, while Chief Justice Rehnquist denounced the "Court's decision to place weight on foreign laws." The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and "reaffirming American independence."