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1 results

  • 5 - Reasoning from Authoritative Although Not Legally Binding Rules

  • Melvin A. Eisenberg, University of California, Berkeley
  • Book:
    Legal Reasoning
    Published online:
    22 September 2022
    Print publication:
    29 September 2022, pp 34-40

  • Summary

    The most prominent type of rules employed in American legal reasoning consists of rules established in binding legal precedents. The next most prominent type consists of authoritative although not legally binding rules. An authoritative although not legally binding rule is one that courts treat as a rule not because after due consideration they regard it as a good rule but because it was adopted in a source to which the courts give deference. In the common law there are several sources of authoritative although not legally binding rules. One source consists of decisions by the Supreme Courts of other jurisdictions. Another source consists of cases decided by coordinate courts in the same jurisdiction as the deciding court. Perhaps the most important sources of authoritative although not legally binding rules are Restatements and leading treatises.