Wednesday, March 17, 2010

Scholarship alert: "Toward a theory of persuasive authority'

This article is by Professor Chad Flanders of St. Louis University School of Law and can be found at 62. Okla L. Rev. 55 (2009).  From the abstract:

As a court attaches some weight to any of the matters herein described as of imperative authority or of persuasive authority or of quasi-authority, and as a court has it in its power to disregard even imperative authority, the question naturally arises whether the attempted distinctions between the kinds of authority are not wholly imaginary, or at least unimportant.  

In the ongoing-and by now increasingly tired-debate over foreign authority, little attention, if any at all, has been paid to the idea of persuasive authority.  This is puzzling because so much in that debate seems, if only   implicitly, to rely on assumptions about what persuasive authority is. Those who favor citing to decisions in foreign courts will often defend the practice by pointing to the established practice of citing authorities that are "merely persuasive." The idea that some authority is "persuasive" is then contrasted with authorities that are mandatory or binding and which have their authority by virtue of something else besides their persuasiveness-for example, because they are the rulings of a higher court or are decisions made by the same court in the past. Foreign authorities, the argument goes, are merely "persuasive" and are not binding and as such can be cited insofar as they are helpful and illuminating to the issue. Because they do not bind, they do not raise the specter of being ruled by a foreign country, as some fear.

But very little has been said to explicate the very idea of persuasive authority itself, in its own right: Why indeed should there be any such thing? Why shouldn't there simply be the authority of higher courts and the court's past opinions, plus the court's own reasoning and interpretation?  Further, what entitles a source-whether it be a decision of a foreign court, a blog entry, a law review article, or a treatise-to count as a persuasive authority?    Are some sources, either by virtue of their merit or their status as a kind of source, generally more persuasive than others? The obviousness of these questions, coupled with the lack of any clear answers to them-still less any theory that might generate answers to them-shows the extent to which we are still in the dark as to the nature of persuasive authority.

I am the scholarship dude.


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