Schauer Ch. 4

Question 1

Explain the difference between first-order and content-independent reasons

Answer 1

First-order reasons: these reasons are directly related to the substance or content of a decision or argument and they pertain to the specific facts, principles, or values involved in a particular case or issue
Content-independent reasons: are not based on the specific content of a decision but instead focus on procedural or structural aspects such as legal authority, procedural rules, and institutional norms

Question 2

Explain the difference between binding authority and persuasive authority

Answer 2

Binding authority: refers to legal sources that courts within a particular jurisdiction are obligated to follow
Persuasive authority: refers to legal sources that courts may consider and be influence by in their decision-making, but they are not obligated to follow them

Question 3

Describe which kinds of authorities are prohibited

Answer 3

Ultra vires actions: actions or decisions taken beyond the legal authority of an individual or entity
Void or unconstitutional laws: laws or regulation that are invalid due to conflicts with higher legal principles
Decisions lacking jurisdiction: rulings made by courts lacking proper jurisdiction over the subject matter
Unethical or fraudulent sources: authorities derived from unethical or fraudulent practices

Question 4

Describe how persuasive authorities become persuasive authorities

Answer 4

Persuasive authorities gain their persuasiveness through reasoning and analysis, expertise and authority, relevance and similarity, consistency with legal principles, and public policy considerations