Excerpted from:

Core Legal Research Competencies: A Compendium of Skills and Values as defined in the ABA Macrate Report, A Report by the AALL Research Instruction Caucus (1997)

Relative Weight of Authority

(A)Types of Authority

The lawyer should be able to distinguish the types of authority and recognize which tend to provide the controlling principles for the resolution of various kinds of issues in various substantive fields. Specifically, the lawyer should:

(i) Understand that mandatory authority is binding as precedent, and must be applied by courts;

(ii) Understand that persuasive authority is not binding as precedent, and may be accepted or rejected by courts.

(B) Mandatory Authority

The lawyer should know the degree of authoritativeness of constitutional and common law decisions made at the various levels of the federal and state judicial systems. Specifically, the lawyer should know that:

(i) In general, decisions of higher courts are binding on lower courts;

(ii) In general, decisions of federal courts on matters involving questions of federal law are binding on state courts;

(iii) In general, decisions of state courts on matters involving questions of state law are binding on federal courts;

(iv) Decisions by the U.S. Supreme Court on matters involving the U.S. Constitution are binding on federal courts and on matters involving federal statutes are binding on state courts;

(v) Decisions by U.S. Circuit Courts on matters involving the U.S. Constitution are binding on state courts in that Circuit;

(vi) Decisions by U.S. District Courts involving federal statutes are binding on state courts in that District;

(vii) Decisions by the highest state courts involving state constitutions or state statutes are binding on federal courts.

(C) Persuasive Authority

The lawyer should recognize those materials considered persuasive by courts. Specifically, the lawyer should know that:

(i) Similar decisions rendered by courts in nearby jurisdictions may be persuasive;

(ii) Analogous decisions rendered by courts with jurisdiction over the controversy may be persuasive;

(iii) Dicta, the statements made by courts on matters not within the scope of the controversies considered in decisions, may be persuasive;

(iv) Commentaries, including secondary resources such as law reviews, restatements, treatises, etc., may be persuasive.

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