If you’re reading this blog, you probably know that, when building an argument, it’s best to rely on primary, binding authorities: governing legislation and caselaw from the court of appeal you’re in or the Louisiana Supreme Court. But what if your case raises an issue that isn’t governed by binding authority—a “case of first impression”? In those instances, you need persuasive authorities. But which persuasive authorities are likely to be most persuasive? Cases from other jurisdictions? Treatises? Law-review articles?
A few years ago, Professor Mark Cooney studied that topic and had the results published in the Stetson Law Review. Mark Cooney, What Judges Cite: A Study of Three Appellate Courts, 50 Stetson L. Rev. 1 (2020) (available on SSRN). He studied opinions of two state intermediate appellate courts (Wisconsin and Virginia) and the U.S. Supreme Court to see the types and frequence of authorities cited: primary sources versus secondary sources, binding versus persuasive authorities, and types of persuasive authorities. Since most readers of this blog probably practice more in Louisiana courts of appeal than the U.S. Supreme Court, I’m going to focus on Cooney’s findings from the two state appellate courts.
According to Cooney’s study, the appellate courts generally stick with primary authorities: statutes and cases. Those constituted 98% of the authorities cited. When citing caselaw, they cited binding precedents 80% of the time—90% when counting U.S. Supreme Court cases.
These numbers are not surprising, and they probably won’t cause any of you to change your research and writing habits. Most lawyers I’ve come across know that statutes and binding cases are the best authorities to support an argument. Cooney’s study provides data supporting that instinct.
When citing cases as persuasive authorities, the state appellate courts most often cited published cases from U.S. courts of appeals (30%), followed closely by published cases from another state’s highest court (29%). They didn’t much cite cases from U.S. district courts (7%) or unpublished decisions from any court, including their own (6%). Long story short, a persuasive authority is likely to be more persuasive if the citation contains an F.2d, F3d, or F.4th.
The state appellate courts also preferred more recent decisions over older decisions. The cases from the state appellate courts were decided in 2017, and cases from the 2010s were cited 32% of the time. Extrapolating that to a full decade (assuming three more years of cases to cite) works out to 46% if my math is correct. That’s compared with 35% for 2000s cases, 15% for 1990s cases, 10% for 1980s, cases, and down from there as the cases got older.
As for secondary sources, the state appellate courts most frequently cited treatises (32%), followed by comments to standard jury instructions (17%), legal dictionaries (17%), encyclopedias (14%), and periodicals, including law reviews (13%), with other secondary sources in the single digits. And when citing law reviews, they tended to stick to those from in-state law schools.
One thing Cooney’s study didn’t account for was in-state persuasive authority. From a quick-and-dirty Internet check, it looks like Virginia and Wisconsin each have one court of appeals. In Louisiana, we have five separate courts of appeal. So a decision from, say, the Louisiana Fourth Circuit would be binding in that court but only persuasive in the Louisiana First Circuit. That being said, my unscientific impression (probably shared with most Louisiana practitioners) is that Louisiana courts of appeal tend to follow each other’s cases, either because they find them persuasive or because they want to avoid a circuit split.
So for Louisiana practitioners in need of persuasive authorities, continue to look first to published cases from other Louisiana courts of appeal. Next, look first to published decisions of U.S. courts of appeals. If you have to fall back to secondary sources, start with something like the Louisiana Civil Law Treatise, and next look to in-state law reviews.
For any readers in academia who’d like to have their writing cited by the U.S. Supreme Court, Cooney’s study has that covered. First, get yourself published in a so-called “elite” law journal—Harvard, Yale, or a journal from another top-tier school. Second, choose a hot topic. In the SCOTUS, the articles most cited were about criminal law and procedure (30.4%), followed by constitutional law and justiciability (26.5%), jurisprudence and statutory construction (16.7%), and civil procedure and jurisdiction (9.8%). Other topics were below 3% each, with several registering 0%.