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What is Persuasive Authority? A Comprehensive Legal Guide
Definition & Meaning
Persuasive authority refers to legal sources that a court may consult when deciding a case, although these sources do not have the force of binding precedent. This means that while a judge can consider persuasive authority to help guide their decision, they are not required to follow it. Common sources of persuasive authority include decisions from lower courts, rulings from courts in other jurisdictions, legal treatises, law review articles, and statements made in judicial opinions that are not essential to the decision (known as dicta).
Table of content
Legal Use & context
Persuasive authority is commonly used in various areas of law, including civil, criminal, and family law. Courts may refer to persuasive authority when there is a lack of binding precedent or when the existing law is ambiguous. For individuals navigating legal issues, understanding how persuasive authority works can be beneficial, especially when using legal templates or forms from resources like US Legal Forms, which are drafted by experienced attorneys.
Key legal elements
Real-world examples
Here are a couple of examples of abatement:
1. A state appellate court may look at a decision from a neighboring state that addresses a similar legal issue. Although the court is not bound to follow that ruling, it may find the reasoning persuasive and choose to adopt it in their own decision.
2. A judge might reference a law review article that discusses a legal principle in-depth to support their interpretation of a statute. (hypothetical example)
State-by-state differences
Examples of state differences (not exhaustive):
State
Use of Persuasive Authority
California
Frequently uses persuasive authority from other states and legal commentary.
Texas
Relies more heavily on binding precedent but may consider persuasive authority in novel cases.
New York
Often looks to persuasive authority from federal courts and other jurisdictions.
This is not a complete list. State laws vary and users should consult local rules for specific guidance.
Comparison with related terms
Term
Definition
Key Difference
Binding Precedent
A legal decision that must be followed by lower courts in the same jurisdiction.
Binding precedent is mandatory, while persuasive authority is not.
Dicta
Statements in a judicial opinion that are not essential to the decision.
Dicta can be persuasive authority but is not binding.
Common misunderstandings
What to do if this term applies to you
If you find yourself in a legal situation where persuasive authority may apply, consider the following steps:
Research relevant cases and legal commentary that may support your position.
Consult with a legal professional for tailored advice.
Explore legal templates available through US Legal Forms to assist in your case.
Find the legal form that fits your case
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