Persuasive precedent

Persuasive precedent (also persuasive authority) 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.

Types of persuasive authority

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 court 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.

Horizontal Courts

Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court 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 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 argument

Courts 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, 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."