What is a persuasive source of law?

What is a persuasive source of law?

Customary law, like indigenous law, is also recognised as a persuasive source of law. Textbooks and journal articles can also be a persuasive source of law, if they are methodical and convincing. They do not have inherent authority on their own. These works are written by academics, lawyers, judges, etc.

What is the difference between binding and persuasive case law?

In general, a decision by a court of the same rank is persuasive authority. For example, trial court decisions are not binding in the same trial court. Although court decisions of persuasive authority are not binding precedent, a court may choose to rely on and follow the decisions.

Are regulations in the CFR mandatory or persuasive authority on an issue within an agency’s jurisdiction?

C.F.R. regulations are mandatory authority on an issue within an agency’s jurisdiction. Regulations are implemented pursuant to authority granted to the agency by statute; a regulation carries the weight of its enabling statute.

What is an example of persuasive authority?

Persuasive authority is what the court may consider when analyzing an issue, but it is not on what the court is required to base its decision. Examples of persuasive authority are law review articles and judicial decisions from other jurisdictions.

How do you know if a case is mandatory or persuasive?

If there is no mandatory authority in your jurisdiction, look to persuasive authority. The strongest persuasive authority will likely be primary authority from a higher court or a court of the same level. Keep in mind, authority from some jurisdictions might be more persuasive than authority from other jurisdictions.

What would be required for any of the sources to be mandatory authority?

Mandatory authority consists of constitutions, legislations, and judicial decisions. Constitutions derive their authority from the people, so constitutions bind only those who have agreed to be bound.

Why does mandatory and persuasive authority matter?

Primary sources can be either persuasive or mandatory. Mandatory authority refers to cases, statutes, or regulations that the court must follow because it is binding on the court. Persuasive authority refers to cases, statutes, regulations, or secondary sources that the court may follow but does not have to follow.

Is a case binding or persuasive?

Decisions by courts are not binding on administrative tribunals, but they are “persuasive” (see “What is “Persuasive” Case Law?” below). This means that when you search for cases on your legal issue in CanLll, those decided at the highest level will be the most important and influential in making your own arguments.

How do you cite a persuasive authority?

When writing a memo or a brief, you must cite to relevant mandatory authority. However, consider citing persuasive authority if no mandatory authority exists or adding support to the mandatory authority that you cited. As mandatory and persuasive authority are subsets of primary sources, reconsider Examples 1 and 2.

Is the CFR binding or persuasive authority?

Mandatory Authority All courts, federal and state, are bound by the decisions of the U.S. Supreme Court on U.S. Constitutional and other issues of federal law. However, California courts are not bound by the decisions of other state courts, such as Arizona.

What is mandatory and persuasive authority?

Mandatory authority refers to cases, statutes, or regulations that the court must follow because it is binding on the court. Persuasive authority refers to cases, statutes, regulations, or secondary sources that the court may follow but does not have to follow.

How can a legal researcher determine whether a case is considered mandatory or persuasive authority?

When to cite cases that are merely persuasive?

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;

Which is mandatory in a persuasive authority case?

Legal Research: An Overview: Mandatory v. Persuasive Authority Courts are required to follow the decisions of higher courts in the same jurisdiction. Accordingly, cases which are both (1) from a higher court, and (2) in the same jurisdiction are considered mandatory authority.

When to cite to non-binding persuasive authority?

While it is always best to cite to controlling authority, sometimes it can be useful to cite to non-binding cases as relevant persuasive authority. For example, if there is little or no binding authority for your issue in your jurisdiction, you may want to cite to on-point cases outside of your jurisdiction.

Can a persuasive source be a mandatory source?

Mandatory authority is binding on the court, but persuasive authority is not binding. All primary sources are not mandatory authority, i.e., all primary sources are not necessarily binding. For example, judicial decisions are primary sources, but they may only be persuasive authority, depending on the jurisdiction.