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What Is a Persuasive Source of Law

/What Is a Persuasive Source of Law

What Is a Persuasive Source of Law

Secondary sources can be books, articles, notes, or many other forms. They can be good places to start research, as they can provide context, explanations and vocabulary, as well as insights into primary sources of law. Sources of law can also be divided into “persuasive” and “persuasive” authority. Binding authority is what a court must look for when deciding a case. Only primary sources can be authoritative. For example, a Minnesota law that applies to the case is a mandatory authority in Minnesota. A Minnesota Supreme Court decision interpreting this law would also be a binding authority. If there is no convincing authority, courts may listen to persuasion (e.g., scientific articles or books, or cases from other jurisdictions), but they do not need to be persuaded by them. When confronted with different types of authority, a court values some sources of authority more than others.

In other words, the court will find one authority more persuasive than others. Factors that the court may consider include: From: Persuasive in A Dictionary of Law » Primary sources are from government. These are constitutions, statutes, regulations and court decisions. It may also include statutes and ordinances of municipalities, decisions of administrative authorities and court regulations. Finally, dicta is a Latin term that refers to the parts of a decision that are not decisive for the decision, but are simply the tangential opinions or analyses of the author. Although dicta may be convincing, they are not the legal basis for the decision. When citing a case, be sure to distinguish dicta from the factual reasoning that the court uses to reach a conclusion, as dicta are not binding in these proceedings or for future courts dealing with the relevant issues. Factual similarity: Cases that are factually similar and deal with the same problems are called “four-paced” or “four-legged” and are the most compelling. Persuasive authority, as opposed to binding authority, describes a source of law – primary or secondary – that has some authoritative weight, but does not bind a court. Persuasiveness: The power of persuasion is what the court can consider when analyzing an issue, but it is not what the court needs to justify its decision. Examples of persuasive power include law overview articles and court decisions from other jurisdictions.

Type of decision: Majority decisions are more persuasive than concurring or dissenting opinions. Nevertheless, it is important to read concurring and dissenting opinions, as they may offer a different perspective on the legal issues at stake. Other persuasive authoritative sources include reformulations, treatises, and jury instructions. The authoritative weight that a court gives to these other sources varies by jurisdiction. Legal resources are sometimes divided into “primary” and “secondary” sources of law. Primary sources contain “the law” itself. Secondary sources are writings on the law. Persuasive authority is just that – persuasive, but not binding.

Examples of persuasive power include: decisions of other jurisdictions; legislative history of other jurisdictions; decisions of courts at the same level in the same jurisdiction (i.e. by other courts of first instance); and scientific analyses in the legal literature. See Holden Farms, Inc. v. Hog Slat, Inc., 347 F.3d 1055, 1066 (8th Cir., 2003) Decisions of the Federal Court of Appeal are published in the Federal Reporter. Since 2001, opinions that have not been selected for publication in the Federal Reporter have been found in the Federal Annex West. Some district court decisions are published in supplementary and federal decisions. The best resources for accessing Federal Court decisions online are Lexis and Westlaw. Both services are available free of charge at the Law Library. Many decisions are also available on the internet, but there is no complete search engine for them.

Whether a judicial decision is a persuasive body or a proxy authority depends on the rank and jurisdiction of the courts concerned. A decision of a lower court is a persuasive authority for a higher court. Therefore, a decision of another court is a persuasive authority for the Supreme Court since it is the highest court in the United States. In general, a decision of a court of equal rank is a persuasive authority. For example, court decisions rendered in the same trial are not binding. A decision of a court in one jurisdiction is a power of persuasion for the courts of another jurisdiction. For example, federal court decisions are not binding on state courts and vice versa, and decisions of other state courts are not binding on Forum State Court.

By |2022-12-08T00:46:56+00:00December 8th, 2022|Uncategorized|0 Comments

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