Research as a Process: Mandatory v. Persuasive

Most legal research is a search for authority, something that will cause a court to decide in your favor or, better yet, that will cause your opponent to settle a case in your favor before it gets to court. Authority comes in several versions: primary and secondary, mandatory and persuasive.

Primary authority is that coming directly from a governmental entity in the discharge of its official duties. Primary authority includes documents like case decisions, statutes, regulations, administrative agency decisions, executive orders, and treaties. Secondary authority, basically, is everything else: articles, Restatements, treatises, commentary, etc. The most useful authority addresses your legal issue and is close to your factual situation. While decision makers are usually willing to accept guidance from a wide range of sources, only a primary authority can be mandatory in application.

Just because an authority is primary, however, does not automatically make its application in a given situation mandatory. Some primary authority is only persuasive. The proper characterization of a primary authority as mandatory or persuasive is crucial to any proceeding; it can make the difference between success and failure for a client's cause. 

This page provides an overview of the mandatory vs. persuasive authority distinction.

When Decisions Are Mandatory

Whether a decision of a particular court is mandatory, whether it must be followed by another court, depends on the source of the decision. As a general rule, the decisions of a court will be mandatory authority for any court lower in the hierarchy. Decisions from a court lower than the one in question are never mandatory.

Federal Courts 

1. United States Supreme Court - The decisions of the United States Supreme Court are mandatory authority in all courts, federal and state, when the decisions cover points of federal law.
2. United States courts of appeals - Decisions of the U.S. courts of appeals are mandatory on district courts and other lower courts within the circuit. Court of appeals decisions are persuasive authority in the other circuits, both for other courts of appeals and for lower courts. Federal courts of appeals decisions are not binding on state courts.
3. United States district courts - The decisions of U.S. district courts are mandatory on specialized lower courts if within the appellate jurisdiction of the district court (i.e., bankruptcy, territorial courts, etc.). District court decisions are not binding on state courts.

State Courts 

1. State supreme courts, on decisions of state law - The decisions of a state supreme court on that state's laws are mandatory authority for all lower courts in that state. State supreme court decisions will also be binding on federal courts that are interpreting the state's law under diversity jurisdiction.
2. State appellate courts, on decisions of state law - Decisions of state appellate courts, when adjudicating that state's laws, are mandatory on all lower courts in the state. Note: In some states, the appellate courts are divided into circuits or panels. If this is the case, decisions of an individual circuit or panel most likely will be binding within the jurisdiction of that circuit or panel, and will be persuasive authority for other courts in the state. Check the court rules or case law in the state involved to understand how the system works.   
3. State trial-level courts - State trial-level decisions will be mandatory authority only if the trial-level court exercises review over a lower court's decisions. For example, in many states, parties can have a review or rehearing of cases originally heard in the county courts, traffic courts, or municipal courts.

When Decisions Are Persuasive

A court's decision can be used as persuasive authority in any state or federal court that does not need to consider it mandatory. It is important to remember, however, that the degree of persuasiveness will vary, dependent on a wide range of considerations. For one, factual similarity is key to choosing among persuasive decisions; if the legal issues are the same, the decision based on the most closely matching factual situations will usually be the stronger persuasive authority. Other factors affecting the degree of persuasiveness of a decision include whether the opinion was particularly well reasoned, the stature of the jurist who authored the opinion, and the level of the court from which the decision came. 

Reliance on many marginally persuasive cases will do much less good than reliance on one or two highly relevant ones. Efficient and effective legal research will allow you to locate the most relevant and persuasive cases available. Moreover, persuasive authority can be used as a tool to find cases that are binding.

When Using Persuasive Authority

When citing cases that are merely persuasive, rather than binding, it is important to explain why the court should follow that precedent.  Such explanation 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; and/or
• The other decision is the most recent authority available on the topic.

For many legal issues, there may be federal and state constitutional provisions, statutes, or regulations on point. While federal law generally trumps state law, this is not always the case. It is possible that both laws may apply or even that only the state law will apply.

The U.S. Constitution provides a floor of protections, not a ceiling. That is, state constitutions may provide additional protections. Where such a conflict exists, the state constitution will govern in that state's courts.

The same may hold true when federal and state statutes or regulations conflict as well. For example, Ohio law provides that the current minimum wage in California is $9.00, while federal law provides that the minimum wage is $7.25. In Ohio, state law will apply. However, if the conflict occurred in the opposite way (i.e., federal law provided a higher minimum wage than state law), the federal law would apply.

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