To design arguments that judges will find persuasive, litigators must remain alert to where the sources they cite fall on the hierarchy of legal authority. This post proposes a rough hierarchy and shows how an attorney might use a nonbinding authority to complement a binding one.
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-
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
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