authority, international law, supreme court
The debate about the citation of foreign authorities has become stale. One side says that citing foreign authorities means being beholden to foreign sovereigns. The other side responds that this is nonsense, as the authorities are being used only for their "persuasive value." But do we even have a good idea of what it means to be a persuasive authority? My essay is the first to focus entirely on the notion of persuasive authority and to make the first steps towards providing a general theory of it. I make two major contributions. First, I try to show that there is both a descriptive and a normative ranking we can make of persuasive authorities. Some authorities are simply more "persuasive" than others, and we can say why. Second, by the use of examples, I show that some so-called persuasive authorities have a power over courts that is more closely akin to mandatory authority. In making these two points, my essay tries to reveal the real stakes in the debate over the citation of foreign authorities by United States courts and moves past the overheated and unproductive rhetoric on both sides.
Flanders, Chad, Toward a Theory of Persuasive Authority (2009). Oklahoma Law Review, Vol. 62, p. 55, 2009; Saint Louis U. Legal Studies Research Paper No. 2009-19.