Binding v. Persuasive Authority

This is a pet-peeve post. There are two types of authority: binding & non-binding. Binding is when an appellate court says “thou shalt do this” in a given situation. Non-binding is everything else and is also known as persuasive authority.

Occasionally I see arguments that forget this distinction.  They argue that the district court’s ruling in another case, or how a different district court judge ruled in another case, is binding authority.  This is incorrect.  Those rulings are persuasive authority, at best, if commonalities exist.  Arguing that an authority is binding when it is only persuasive can undermine your credibility and your argument.

I rarely cite the Supreme Court of the United States on this blog (strangely they generally do not bother themselves with discovery questions), but even it has weighed in on this issue.  “A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”[1]  The Supreme Court of Nevada stated the same thing in an unpublished order.  “The district court did not ignore precedent, as other district court orders do not constitute mandatory precedent and are not binding in subsequent cases unless issue or claim preclusion applies, neither of which is argued here.”[2]

[1] Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)).
[2] Oliver v. Bank of Am., No. 57309, 2012 Nev. Unpub. LEXIS 211, 2012 WL 425728 (2012).