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question—what, after all, is meant by “legal support”? Lawyers speak in terms of authority: a
statute or a binding precedent is mandatory authority, a precedent from another jurisdiction is
persuasive authority, and legal treatises, law reviews, and other expert legal commentary can be
described as secondary authority (see, e.g., Fine 1997, 2). Concurring and dissenting opinions
also offer a kind of authority for a proposition, if only persuasive. An argument might be
understood as legally defensible where the attorney making it could point to persuasive authority,
such as a law treatise, or a dissenting opinion, in support of it. These materials would provide
legal support for the argument in the sense that some other lawyer—a law professor, a
practitioner, or one or more justices of the U.S. Supreme Court—concluded that that argument
should prevail on that point of law.
There are so many law review articles, treatises, discretionary opinions, and so on, that
this sense of legal support must be rejected as too broad. Accepting it would mean that there
would be legal support for almost every proposition in almost every case. Economic and
political actors would be unable to make and act on rational plans given their inability to predict
the legal consequences of those plans, and so on. To avoid these difficulties, the courts follow,
more or less, the norm(s) of stare decisis. Any definition of legal support must take stare decisis
into account, at least at the court of appeals level. The difference between mandatory authority
and non-binding authority becomes central to the definition. A law review article or treatise
criticizing a binding Supreme Court precedent might make excellent points, but those points are
academic from the judge’s point-of-view. Once a majority of the Supreme Court has
determined, for example, that the states have a compelling interest in achieving student body
diversity (see Grutter v. Bollinger 2003), then that matter is settled, unless it is revisited by the
Supreme Court. Once a binding precedent exists on a point of law, there is no longer legal
Convention