Binding Authority vs. Persuasive Authority: What's the Difference?

Three things have to line up. First, jurisdiction: the deciding court must sit above the court you are in, in the same hierarchy. Second, level: it must be a higher court, or the same court operating under a rule of self-binding precedent. Third, subject: the earlier decision must have resolved the same legal question, and that resolution must be part of the holding rather than an aside.

Miss any one and the case drops to persuasive. A Ninth Circuit opinion is binding on the District of Arizona and on later Ninth Circuit panels. It is not binding on the Fifth Circuit, on an Arizona state court deciding an Arizona-law question, or on a Ninth Circuit panel considering a different issue the earlier opinion merely mentioned.

Statutes, constitutions, and validly promulgated regulations are binding within their jurisdiction as a matter of course. When people argue about binding versus persuasive, they are almost always arguing about case law.

Vertical stare decisis runs downhill. U.S. Supreme Court decisions on federal law bind every court in the country, federal and state. A circuit's published opinions bind the district courts within that circuit. A state supreme court binds every court in that state.

Horizontal stare decisis is a court binding itself. Under the 'law of the circuit' rule, a three-judge federal appellate panel cannot overrule a prior published panel decision; only the en banc court or the Supreme Court can. State supreme courts follow their own precedent but can overrule it. Trial courts generally do not bind themselves at all: a federal district judge's opinion is not precedent in another district, in the same district, or even for the same judge in a later case, though it carries real weight in practice.

Two rules matter when precedent looks shaky. Under Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989), and Agostini v. Felton, 521 U.S. 203 (1997), a lower court must follow a directly controlling Supreme Court decision even if later cases have eroded its reasoning, and leave the overruling to the Supreme Court. Judge Posner did exactly that in the Seventh Circuit in what became State Oil Co. v. Khan, 522 U.S. 3 (1997), applying a precedent he called 'moribund' — and the Supreme Court then overruled it.

The two hierarchies cross, and this is where students lose points. On questions of state law, the state's highest court is the final word, and a federal court sitting in diversity must follow it. That is Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), reinforced by Commissioner v. Estate of Bosch, 387 U.S. 456 (1967). If the state high court has not spoken, the federal court makes an 'Erie guess,' treating intermediate state appellate decisions as strong evidence of state law unless persuaded the high court would rule otherwise, or certifies the question to the state supreme court where a certification procedure exists.

Running the other direction: state courts are bound by the U.S. Supreme Court on federal questions but, under the majority rule, are not bound by federal circuit or district decisions interpreting federal law. A California appellate court can disagree with the Ninth Circuit on the meaning of a federal statute. It will usually say the federal decisions are entitled to respect, then do what it thinks correct.

Federal courts are likewise not bound by state court interpretations of federal law.

Only the holding binds. Dicta — statements not necessary to the result — are persuasive at best. Chief Justice Marshall made the point in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821): general expressions in an opinion are to be read with reference to the case actually before the court. Expect an opposing brief to argue that your favorite passage is dictum, so be ready to tie it to the facts the court had to resolve.

When no rationale commands a majority, use the Marks rule from Marks v. United States, 430 U.S. 188 (1977): the holding is the position taken by the Justices who concurred on the narrowest grounds. Courts apply Marks inconsistently, so flag the difficulty rather than pretending the answer is clean.

Unpublished or 'non-precedential' dispositions are a separate category. Federal Rule of Appellate Procedure 32.1 bars courts from prohibiting citation of federal judicial opinions designated as unpublished or non-precedential and issued on or after January 1, 2007 — but citation permitted is not the same as precedential force, and circuits still treat them as non-binding. Compare Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000), with Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), for the constitutional debate. State rules differ sharply: California Rule of Court 8.1115 generally forbids citing unpublished California opinions at all.

Not all persuasive authority is equal. Weigh it by how close it is to your court and how good the reasoning is.

Explain in your writing why the source deserves weight: the sister circuit adopted your rule after full briefing, the Restatement section has been adopted by twelve states including yours, the treatise author drafted the uniform act. A string cite without that explanation is filler.

In a memo or brief, lead with binding authority and give it the most space. Cite persuasive authority only after you have shown either that no binding case controls or that the binding cases leave a gap. Then say out loud that the case is persuasive and explain why the court should adopt it.

Bluebook mechanics carry signals about weight. Rule 1.2 signals matter: no signal means the source directly states the proposition; 'see' means it supports by inference; 'cf.' means it supports by analogy and demands a parenthetical explanation. Court and date in the parenthetical do the work of showing jurisdiction, so never omit them — 'Smith v. Jones, 123 F.3d 456 (7th Cir. 1997)' tells the reader instantly whether you are citing binding law. Rule 10.7 requires subsequent history, which is how you avoid citing something reversed. Practitioners in state court should check the local citation rule, which often displaces the Bluebook entirely (California and New York have their own styles).

There is also an ethics rule. ABA Model Rule of Professional Conduct 3.3(a)(2) requires you to disclose legal authority in the controlling jurisdiction that is directly adverse to your client's position and not disclosed by opposing counsel. Note the limit: it reaches controlling authority, not persuasive authority. You must surrender the bad Second Circuit case if you are in the Second Circuit; you need not volunteer the bad Ninth Circuit case.

The status of intermediate appellate decisions is the biggest variable, and it is state-specific. In California, Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962), makes every published Court of Appeal decision binding on every superior court in the state, even one from a different district — and where districts split, the trial court chooses. Other states treat an intermediate court's decisions as binding only within its own district or department, and some treat the trial court as free to pick when appellate districts conflict. Look for a stare decisis case from your state supreme court, or check your state's court rules.

Publication and citation rules also vary. Some states permit citation of unpublished opinions as persuasive; California generally does not; the federal system permits citation but denies precedential effect. Finally, whether a court will certify an unsettled state-law question to the state high court depends on whether that state has authorized certification and on the federal court's discretion. When you write about any of these, name the rule you checked.