Persuasive Precedent

 When judges make legal decisions, they are not making things up as they go along. That would create chaos. Instead, they rely on court decisions that have come before – something called precedent. But not all precedent is created equal. The most compelling precedent is from cases that have been decided within your jurisdiction. So, for example, a district court in the 3rd Circuit will be primarily relying on cases decided by the 3rd Circuit Court of Appeals (or the US Supreme Court, if they have ruled on the issue). There are times, of course, when your jurisdiction has not previously decided your issue. In that case, you go to other jurisdictions (different circuits) to see what they have said. Those outside decisions are not “binding” but are described as “persuasive.”

A comical use of “persuasive precedent” occurred Saturday. If you read my yesterday post, Lin Wood, as the plaintiff, lost his appeal to the 11th Circuit Court of Appeals (covering Georgia) on every conceivable grounds. Less than five hours later, the attorney for the Secretary of State of Arizona, submitted a Notice of Supplemental Authority in the ongoing Arizona case, noting that virtually all of the arguments in Arizona were summarily dismissed in the Georgia case. Filing supplemental authority is not particularly unusual. What makes this comical is that Lin Wood, the plaintiff in the Georgia case, is one of the attorneys of record in the Arizona case. It will be interesting to see what he says about this. [Written December 6, 2020]