Testing the Geographical Proximity Hypothesis: An Empirical Study of Citations to Nonbinding Precedents by Indiana Appellate Courts
90 Notre Dame Law Review Online 125 (2015)
34 Pages Posted: 3 Apr 2015 Last revised: 11 Apr 2015
Date Written: February 6, 2015
It is difficult to gauge with certainty what makes one non-binding judicial opinion “more persuasive” to a deciding court than another. Advice in this area comes mostly in the form of intuitive guesswork, anecdote, and hearsay. One oft-repeated factor bearing on persuasiveness is the geographical proximity between the court of decision and the court that generated the non-binding precedent. While instinctively attractive, this testable assertion has largely gone untested. This Article sets forth empirical research about the citation practices of Indiana appellate courts in order to test the proposition that geographical proximity bears on the persuasive value of non-binding precedents.
This Article analyzes the citation patterns of the Indiana Supreme Court and the Indiana Court of Appeals from 2012 to 2013. The research underlying this Article involved a study of 1324 opinions from that time period. In those opinions, the Indiana appellate courts cited to out-of-state judicial decisions 738 times. This Article analyzes those citations to test the hypothesis that state courts are more likely to turn to decisions of geographically proximate state courts for guidance when homespun precedent is lacking. The evidence points to the conclusion that, while geographical proximity bears on persuasiveness, it does not cross regional divides. In other words, geographical proximity is important, but works only within groupings of states with shared regional identities. This answer provides a window into judicial decisionmaking that should guide advocates when selecting among a wealth of non-binding authorities that could be cited.
Keywords: legal precedent, non-binding precedent, persuasive precedent, legal authority, citation patterns, Indiana courts
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