Treatise Tactics

Abstract

A judge’s choice of authority is generally governed only by the unwritten social norms of the judiciary, norms which do not exist in canonical textual form and thus are not always visible. Stare decisis norms, those that dictate which judicial opinions are binding on judges, are the subject of endless discussion while the norms that govern the use of non-binding (optional) authority receive little attention by comparison. The selection of optional authority is deemed relatively insignificant, guided by a vague set of tips that are not specifically grounded in theory or empirical data.

I conducted an original study of published opinions in the Tenth Circuit, focused on citation to optional sources of authority. Contrary to conventional wisdom, the data suggests that treatises carry a significant amount of weight as legal authority. Citation to optional sources of authority such as treatises are not random, unpredictable choices, based solely on whether a particular judge finds the content “persuasive.” Treatises are more likely to be cited by men than women, more likely to be cited by Republicans than Democrats, and more likely to be cited in the majority when a dissent has also been written. I analyze these and other patterns in the data to begin developing a modern theory of treatises as a genre of legal authority.

Keywords: treatises, authority, judicial decisionmaking, persuasive authority, federal courts, judicial norms, weight of authority