1 Comment

My only quibble with your article is that you don't cite any authority for your hierarchy of authorities. You might want to call your readers to the attention to:

“Toward a Theory of Persuasive Authority,” 62 OKLA. L. REV. 55, 63-64 (2009). In this article Professor Chad Flanders compiled a list of items that courts have found to be persuasive.

These include (in order of importance):

1. Other courts outside of the court’s

own jurisdiction, whether other cir-

cuit courts or other state courts

(majority and concurring opinions).

2. The laws of other states or of the

federal government and agency


3. Legislative history or debates, espe-

cially if the question is one of statu-

tory interpretation.

4. Restatements of the law, such as the

Restatement of Torts or the Restate-

ment of Contracts.

5. Treatises, such as Lawrence Tribe’s

American Constitutional Law.

6. Law review articles, notes, and


7. Other academic sources, such as

book-length treatments of an issue

(e.g., John Rawls’s Theory of Justice)

or empirical or economic studies of

a certain matter.

8. General interest sources (books, peri-

odicals, and possibly literary sources).

9. General news sources (newspapers

and magazines).

10. Internet sources, including blogs.

11. Moral principles themselves, such as

the golden rule or the idea of equality.

12. Discouraged, but in principle possi-

ble sources: memorandum opinion

and judgments, the Bible, the

National Enquirer, the judge’s


Expand full comment