Pepperdine Law Review

Volume 17 | Issue 3 Article 2

4-15-1990

Precedent: What It Is and What It Isn't; When Do

We Kiss It and When Do We Kill It?
Ruggero J. Aldisert

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Ruggero J. Aldisert Precedent: What It Is and What It Isn't; When Do We Kiss It and When Do We Kill It?, 17 Pepp. L. Rev. 3 (1990)
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Precedent: What It Is and What It Isn't;
When Do We Kiss It and
When Do We Kill It?*

Ruggero J. Aldisert**

The title of this offering is inspired by Holmes' sparkling

apothegm:
When you get the dragon out of his cave on to the plain and in the daylight,
you can count his teeth and claws, and see just what is his strength. But to
get him out is only the first step. The next is either to kill him, or to tame
him and make him a useful animal. 1
The doctrine of precedent is everyone's dragon. If facts in the pu-
tative precedent are identical with or reasonably similar to those in
the compared case, the precedent is recognized as legitimate, and it is
applied. In such cases, all of us-student and professor, lawyer and
judge, commentator and philosopher-consider it merely, as the
Italians say, un dragonetto (a small dragon). But if the material facts
in the compared case do not run on all fours with the putative prece-
dent, the doctrine becomes un dragone or, to give equal time, una
dragonessa (a full grown, ferocious dragon). Wrestling with such a
dragon can be the most difficult and controversial job in the judging
business.
I realize that literature on how to deal with this dragon abounds.
To borrow Rabelais' Judge Bridlegoose,
The subject has been well and exactly seen, surveyed, overlooked, reviewed,
recognized, read and read over again, tossed and turned about, seriously pe-
rused and [we have] examined the preparatories, productions, evidences,
proofs, allegations, depositions, cross-speeches, contradictions . . . and other
2
such like confects and spiceries.

* Copyright by Ruggero J. Aldisert, 1990.

** Senior United States Circuit Judge of the U.S. Court of Appeals for the Third
Circuit. This article expands remarks delivered at the Mid-Winter Meeting of the
Conference of State Chief Justices, Orlando, Florida, January 25, 1989. I acknowledge
the assistance of my law clerks, Catherine S. Hill and Anne Marie Finch.
1. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 469 (1897).
2. RABELAIS, BK III, at 39.
Undeterred, I make bold to mount my charger, draw my lance, and
gallop into the lists to volunteer some advice on how to tweak the
dragon's tail. Perhaps the dragon will prove too elusive, or I too bold
or too meek, but ever persistent I will press on, hoping to tame this
dragon. I bring with me experience, not only as a judge, to be sure,
but also as one who has explored and meandered in the judicial pro-
cess thicket, seeking trails to understand what it is all about. 3
First I will discuss some definitions of precedent and the overarch-
ing doctrine of stare decisis. I then will explore what I call the four
different models of precedent. From this I will move to a considera-
tion of precedent as a method of classification containing varying de-
grees of abstraction. This will lead to a study of inductive reasoning,
including both generalization and analogy, taking freely from my re-
cent book, Logic for Lawyers: A Guide to Clear Legal Thinking
(1989). I wrap it up with some views of precedential vitality, and
close with the distinction between precedent and persuasive
authority.

I.

Let's take a moment to review some basics. Precedent is an often

misunderstood concept. Some believe it is more understandable than
explainable. I tried my hand at a definition in Allegheny County
General Hospital v. NLRB in 1979:
A judicial precedent attaches a specific legal consequence to a detailed set of
facts in an adjudged case or judicial decision, which is then considered as fur-
nishing the rule for the determination of a subsequent case involving identical
or similar material facts and arising in the same court or a lower court in the
4
judicial hierarchy.
Chief Justice Marshall expressed the reason for this definition in
1821:
It is a maxim not to be disregarded, that general expressions, in every opinion,
are to be taken in connection with the case in which those expressions are
used. If they go beyond the case, they may be respected, but ought not to con-
trol the judgment in a subsequent suit when the very point is presented for
decision. The reason of this maxim is obvious. The question actually before
the Court is investigated with care, and considered in its full extent. Other
principles which may serve to illustrate it, are considered in their relation to
the case decided, but their possible bearing on all other cases is seldom com-

3. See, e.g., R. ALDISERT, LOGIC FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINK-
ING (1989) [hereinafter LOGIC FOR LAWYERS]; R. ALDISERT, THE JUDICIAL PROCESS
(1976); Aldisert, Philosophy, Jurisprudenceand JurisprudentialTemperament of Fed-
eral Judges, 20 IND. L. REV. 453 (1987); Aldisert, The House of the Law, 19 Loy. L.A.L.
REV. 755 (1986); Aldisert, Rambling Through ContinentalLegal Systems, 43 U. PITT. L.
REV. 935 (1982) [hereinafter Continental Legal Systems]; Aldisert, The Nature of the
Judicial Process: Revisited, 49 U. CIN. L. REV. 1 (1980); Aldisert, The Role of the
Courts in ContemporarySociety, 38 U. PITT. L. REV. 437 (1977).
4. Allegheny County Gen. Hosp. v. NLRB, 608 F.2d 965, 969-70 (3d Cir. 1979)
(footnote omitted).
[Vol. 17: 605, 1990] Precedent: What It Is...
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5
pletely investigated.
Stare decisis is the policy of the courts to stand by precedent. 6 The
expression stare decisis is but an abbreviation of stare decisis et non
quieta movere (to stand by or adhere to decisions and not disturb that
which is settled). Consider these words. First, decisis. This word
means literally, and legally, the decision. The doctrine is not stare
dictis. It is not "to stand by or keep to what was said." The doctrine
is not stare rationibusdecidendi or "keep to the rationes decidendi
of past cases." Rather, a case is important only for what it decides:
for "the what," not for "the why," and not for "the how." It is impor-
tant only for the decision, for the detailed legal consequence follow-
ing a detailed set of facts. Thus, stare decisis means what the court
did, not what it said.
Strictly speaking, the later court is not bound by the statement of
reasons, or dictis, set forth in the rationale. We know this because a
decision may still be vital although the original reasons for support-
ing it may have changed drastically or been proved terribly fallacious.
In a large number of cases, both ancient and modern, one or more of
the reasons given for the decision can be proved to be wrong, but the
cases have retained vitality.
Priestly v. Fowlerj announcing the common law fellow-servant
rule, is one such case. The court based the holding on the alleged
consent of a servant to run the risk. Yet there was no evidence that
such consent was ever requested of, or given by, fellow servants. Of
this case, it has been said that Lord Abinger planted it, Baron Alder-
son watered it, and the devil gave it increase. 8 The concept, however,
was almost immediately adopted in the United States in Farwell v.
Boston & Worcester Railroad.9 Chief Justice Shaw reasoned that an
employee consented to assume the risk of negligence by a fellow ser-
vant upon accepting employment. Again, there were no facts to sup-
port the assertion that the employee actually consented to anything.
This was a concept built out of thin air. Yet, the fellow-servant rule
remained the law in the United States for many years.' 0

5. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821).

6. BLACK'S LAW DICTIONARY 1261 (5th ed. 1979).
7. 3 M. & W. 1, 150 Eng. Rep. 1030 (1838).
8. C. KENNY, LAW OF TORT 90 (5th ed. 1928).
9. 45 Mass. (4 Met.) 49 (1842).
10. See W. KEETON, D. DOBBS, R. KEETON, D. OWEN, PROSSER AND KEETON ON
TORTS § 80 (5th ed. 1984).
 Our understanding is furthered by setting forth in symbolic logic
the canonical formula which to me expresses the entire philosophy of
the common-law tradition. The "material implication" formula is the
essence of precedent: if antecedent fact P is present, then legal con-
sequence Q will follow. This is indicated: P D Q. Precedent thus is
embodied in the following formula:
P DQ
R , P
.R D Q
The key to logic and the law is correctly deciding when R is equal
to P. If R's material facts are similar or the same as P's, then the
previous case, P D Q, controls. The essence of common-law prece-
dent is, therefore, two-fold:
+ The rule or holding of the case has the force of law.
+ The decision constitutes the rule in subsequent cases containing material
facts similar to or identical with those in the case.
This doctrine is central to legal reasoning, briefs, arguments, deci-
sion-making, and opinion writing. Yet precedent is but one aspect of
the doctrine of stare decisis. Precedent means simply that like cases
should be treated alike. Stare decisis requires that the holding of a
similar case with sufficiently similar facts to the case at issue, be
applied to courts of equal or lesser hierarchy within the same
jurisdiction.l1
Precedent and stare decisis, as discussed above, are peculiar to
common-law countries. Neither Roman law nor civil-law traditions
that built on it affords to a court decision the dignity and legal effi-
cacy of this Anglo-American notion. In theory at least, precedent in
its pristine elegance is not followed on the European continent, in
Latin America or in the Socialist countries. In actual practice, how-
ever, civil-law courts are today borrowing our concepts of precedent
as shortcut interpretations of codes and statutes, while theoretically
speaking, each case must be an ab initio interpretation of a legisla-
12
tive act.

III.
Precedent can be discussed in the context of four common types of
opinions:
1. The textbook common-law model. Here the opinion discusses
only the adjudicative facts. Facts are carefully and meticulously set
forth so that the reader may quickly become acquainted with the ma-

ll. BLACK'S LAW DICTIONARY 1261 (5th ed. 1979).

12. See generally Continental Legal Systems, supra note 3, at 935-93 (discussion of
civil law in theory and in practice).
[Vol. 17: 605, 1990] Precedent: What It Is...
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terial facts that form the subject of the holding. The court does not
suggest how it would decide another case based on a change in the
material facts. The fabric is tightly woven. There is no room, there
is no give, to stretch the holding beyond the stated facts.13
2. A variation of this purist model exists when, in addition to the
adjudicative (or material) facts, the court also discusses narrow and
specific facts not in the record and gratuitously suggests how it would
decide a case based on those non-record facts. Such a discussion is
easily recognized as obiter dictum. Consider this example: Operating
his car at an improperly high rate of speed, the driver-defendant at-
tempts a turn and whips across the centerline and crashes into on-
coming traffic. The court d~cides the case in favor of the plaintiff
and says by way of dictum, "Of course, although the facts are not
present here, if the steering wheel suddenly becomes defective, we
would have a products liability case and the defendant would not
have been liable."
3. A third model occurs when the court suggests how it would de-
cide an entire series of cases based on a broad. array of facts not in
the record. So long as this discussion does not implicate the adjudica-
tive facts at bar, it also is recognized as obiter dictum. Consider the
same operative facts presented in our second model. This time the
court says, "If the manufacturer designed a defective brake, a stick-
ing accelerator, a poorly designed steering mechanism, the plaintiff
would have a valid cause of action against the car dealer and manu-
facturer." This is only dictum. The facts of the case do not discuss
defective steering.
4. A fourth model is an opinion in which the court's statement of
its conclusion is broad enough to cover not only record facts but also
additional facts not in the record. Here, the court's decision is not
obiter dictum. It is truly the decision of the case, arrived at in the
common-law tradition, but couched in a holding that is beyond a rule
of law in the narrow sense. 14 The decision takes the form of a gen-
eral principle instead of a narrow rule of law.

13. See, e.g., Strotman v. K.C. Summers Buick, Inc., 141 Ill. App. 3d 8, 11-12, 489
N.E.2d 1148, 1151 (1986) (upholding the dismissal of a complaint alleging strict prod-
ucts liability for a car accident, because the complaint lacked specificity as to what was
defective).
14. See, e.g., Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980). Although the facts
before the court in Finberg were limited to Philadelphia County, and only that
county's procedural rules were interpreted, the court announced a decision governing
the entire State of Pennsylvania.
 Each of the foregoing variations announce decisions of the court
and can be components of the doctrine of stare decisis. As prece-
dents, however, they are not currency of equal value. Clearly, the
first one, the classic common-law model, possesses the strongest bite
of precedent. As we go down the list of examples, numbers two and
three are not precedent, and yet they are authority that can be con-
sidered by a court in a subsequent decision. The fourth variation
meets the definition's technical niceties, but does not possess maxi-
mum strength, and therefore, does not achieve the reliability of a de-
cision limited to the record material facts. An able advocate may
convince a subsequent court that its original holding, although tech-
nically precedent, was only "a little bit precedent."
This fourth model causes the courts more trouble than any aspect
of adjudication. It occurs when a court does not announce a narrow
rule based solely on record facts, but embarks on an intellectual
frolic of its own. Two examples of the fourth variation, decided in
the same year, are illustrative.
In Webb v. Zern, 15 Charles Webb purchased a keg of beer from a
distributor, John Zern. Webb's son, Nelson, was injured when the
keg exploded. The Pennsylvania Supreme Court held that section
402A of the Restatement (Second) of Torts was controlling and then
stated: "We hereby adopt the foregoing language as the law of
Pennsylvania." The court should have held: Nelson, the son, could
recover in tort from the brewer, beer distributor and keg manufac-
turer on the theory of strict products liability, for the reasons set
forth in the Restatement (Second) of Torts, section 402A. This hold-
ing would have met the strictures of the pure common-law model. In
holding as they did, the judges galloped out of the courtroom, up the
hill to the legislature, and proceeded to legislate. The decision was
not limited to the material facts, but rather announced a broad prin-
ciple of law that could be applied to cases with materially different
facts.
Another example of this type of judicial legislation can be seen in
Miranda v. Arizona.16 Miranda was decided in 1966 and promul-
gated a broad legal principle, the so-called "MirandaRule." For the
past twenty years, courts and police departments across the country
have been forced to decide what does and what does not implicate
Miranda. The common-law tradition requires starting with a narrow
holding and, then depending upon the collective experience of the ju-
diciary, either applying it or not applying it to subsequent facts. The
Court did the opposite in Miranda.

15. 422 Pa. 424, 220 A.2d 853 (1966).

16. 384 U.S. 436 (1966).
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What the Supreme Court Did What the Common Law Tradition Demands

dMiranda

Because the usual model was inverted in this case, the Court has
spent the last twenty years chipping away at its holding.
Miranda says that a prisoner must be advised that he or she has a
right to remain silent, a right to have an attorney present during
questioning, and a right to the appointment of an attorney if the pris-
oner cannot afford one. In 1971, the Court said that Miranda's pro-
scription did not apply if the statement was used only to impeach a
witness.17 The Court subsequently held that although it was neces-
sary to cut off questioning in a robbery case when the defendant in-
voked his right to remain silent, it was permissible to question about
an unrelated murder if fresh warnings were given "after the passage
of a significant period of time.' I8 In Beckwith v. United States,19 the
Court held that the questioning of a person suspected of criminal tax
fraud by Internal Revenue agents did not give rise to Miranda. Later
the Court held that Miranda was not violated when a defendant who
initially invoked Miranda waived his rights before seeing an attor-
ney, even though his attorney attempted to see her client but was as-
sured that he would not be questioned until the following day.20 In
Duckworth v. Eagan,2 1 the Court held that informing a suspect that
an attorney would be appointed for him "if and when you go to
court" did not render the warnings inadequate.
The end result is that the broad legal principle announced in Mi-
randa v. Arizona has been consistently chipped away in the 23 years
since the decision was filed. Perhaps the same results would have
been forthcoming if the traditional application of precedent had been

17. Harris v. New York, 401 U.S. 222, 226 (1971).

18. Michigan v. Mosley, 423 U.S. 96, 106 (1975).
19. 425 U.S. 341, 344 (1976).
20. Moran v. Burbine, 475 U.S. 412, 420 (1986).
21. 109 S.Ct. 2875, 2876 (1989).
followed. For our purposes, the important point is that Miranda was
a drastic departure from the common-law tradition of incremental
and gradual accretion of an original narrow rule. It was the exact op-
posite. We saw a broad structure erected in one case that has been
subsequently subject to do-it-yourself remodeling.

IV.
Obiter dictum is where the precedential dragon often reposes.
Gratuitous statements in an opinion which do not implicate the adju-
dicative facts of the case's specific holding are neither stare decisis
nor precedent. They bind neither coordinate nor inferior courts in
the judicial hierarchy. They are classic obiter dicta: "statement[s] of
law in the opinion which could not logically be a major premiss of
2
the selected facts of the decision." 2
I do not accept the cynic's wail that dictum is merely a label pasted
on a case that a subsequent court simply does not want to follow. I
suggest two ways to identify dicta:
* First, dictum is the express or implied description of a factual
scenario that does not appear in the case record.
* Second, dictum is any statement of facts that does not appear
in the minor premise of the court's syllogistic reasoning.
For example, using the familiar categorical syllogism in deductive
logic as used in the law:
Major Premise: All men are mortal.
Minor Premise: Socrates is a man.
Conclusion: Therefore, Socrates is mortal.
This syllogism is legitimate only to the extent that Socrates appears
in the record and legitimately belongs both in the minor premise and
also the conclusion. We cannot properly say that RoboCop is also a
man, is qualified to be in the minor premise, and is therefore, mortal.
The fact of RoboCop's mortality is simply not a matter of record.
Dictum is the antithesis of precedent.

V.
Precedent then, is a doctrine with two jurisprudential concepts in
tension:
* The notion that the reasoning supporting the past decision
may be wrong, but the decision itself, may be right. We have
mentioned this concept before. The logic of the argument,

22. R. CROSS, PRECEDENT IN ENGLISH LAW 80 (2d ed. 1968) (citing E. PATTERSON,
JURISPRUDENCE: MAN AND IDEAS OF THE LAW 313 (1953)).
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the analysis of the historical background and the legislative

history may all be demonstrably incorrect.
The countervailing notion is that expressed by Karl Llewel-
' 23
lyn: "Where stops the reason, there stops the rule.
All of us will continue to struggle with these countervailing consider-
ations. I suggest, however, that these problems which I freely admit
do exist do not go to the precedent's definition; rather, they go to the
precedent's vitality. I express these tensions now solely to emphasize
that for definitional purposes, stare decisis means no more and no
less than that precedent is simply a fact-specific concept, pure and
simple. The doctrine refers only to a detailed legal consequence that
follows a detailed statement of material facts.

VI.
Yet another view of precedent is the perception of the doctrine as a
method of classification. In this view, precedent covers the fact situa-
tion of the instant case and at least one other. It decides one case and
classifies another.
Any classification is an abstraction. The art of legal advocacy is to
expand or contract an abstraction to the extent it is either desirable
or undesirable. If contracted, the original case retains only the
highly constrictive confines of a legal rule. If expanded, the precept
develops from a narrow rule of law into a full-fledged legal principle.
The precepts may form the basis of what Herman Oliphant once
called "a mounting and widening structure, each proposition includ-
ing all that has gone before and becoming more general by embracing
24
new states of fact."
When we expand, we indulge in the process of classification. We
have two fact situations. The first has a definite legal result. We see
one or two elements common to the two fact situations. We then put
the two fact situations in one class, and, using the combined elements
as one enlarged antecedent fact situation, we apply the legal conse-
quence of the first case. Such a class may include multitudes of fact
situations so long as a single common attribute exists.
These classes of fact situations give us a parallel series of corre-
sponding propositions of law, each more and more generalized as we
recede farther and farther from the original state of facts and include
more and more fact situations in the successive classes. It becomes a

23. K. LLEWELLYN, THE BRAMBLE BUSH 158 (7th printing 1981).

24. Oliphant, A Return to Stare Decisis, 14 A.B.A. J. 71, 72-73 (1928).
mounting and widening structure, each proposition including all that
has gone before and becoming more general by embracing new states
of facts.
For example:
1. "An employee in an Executive agency [of the federal govern-
ment] or an individual employed by the government of the District of
Columbia may not.., take an active part in political management or
25
in political campaigns."
2. Any employee of any agency, office or department of the fed-
eral government may not take an active part in political management
or political campaigns.
3. The spouse of a federal government employee may not take an
active part in political management or political campaigns.
4. The parents and children of a federal government employee
may not take an active part in political management or political
campaigns.
5. Acquaintances, friends or business associates of federal govern-
ment employees may not take an active part in political management
or political campaigns.
6. No one may take an active part in political management or
political campaigns.
Clearly, gradation six is far removed from the basic case and it is
clearly illegitimate as classic reductio ad absurdum. Yet the ten-
dency to build a gradation of generalization upon the basic case is the
centerpiece of the art of advocacy; it is external as seen in the argu-
ments of counsel, and internal, insofar as the value judgments of in-
dividual judges are concerned.
Another example is a presently-developing concept of tort law-
the tort of negligent infliction of emotional distress. At common law,
there was no recovery for the negligent infliction of emotional dis-
tress. 26 Consider this developing law in the context of a gradation of
widening propositions:
1. A mother may recover for the negligent infliction of emotional
distress if she watches her child suffer harm, provided the mother,
herself, is in the zone-of-danger, the area of possible physical peril.27
2. A child who watches his step-grandmother run down and killed
may recover for the negligent infliction of emotional distress, even
though he was not within the zone-of-danger. 28

25. 5 U.S.C. § 7324(a)(2) (1982).

26. See generally RESTATEMENT (SECOND) OF TORTS §§ 313, 436, 436A (1966).
27. Dillon v. Legg, 68 Cal. 2d 728, 741, 441 P.2d 912, 921, 69 Cal. Rptr. 72, 81 (1968).
28. Leong v. Takasaki, 55 Haw. 398, 402-07, 520 P.2d 758, 762-64 (1974).
[Vol. 17: 605, 1990] Precedent: What It Is..
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3. A friend may recover for emotional harm if he or she witnesses

another friend being harmed.
4. Bystanders may recover for emotional harm whenever they
witness an accident.
Examine another example that is more typical in the judicial pro-
cess. It is taken from Donoghue v. Stevenson,29 the House of Lords
case that is similar to our MacPhersonv. Buick Motor Co.:30 A Scot-
tish widow bought a bottle of beer containing a snail. The court held:
The presence of a dead snail in an opaque bottle of bever-
age caused by the negligence of the defendant who is a man-
ufacturer whose goods are distributed to a wide and
dispersed public by retailers that caused physical injury to a
Scots woman will render the defendant liable.
This can be stated more generally:
Whether the manufacturer of an article of drink sold by it in
circumstances that prevent the distributor or the ultimate
purchaser or consumer from discerning by inspection any
defect is under a legal duty to the ultimate purchaser or con-
sumer to take reasonable care that the article is free from
defect likely to cause injury to health.
To extend a rule to cover a novel fact pattern is a technique that lies
at the heart of the common-law tradition. It is accomplished through
the use of analogy or generalization. If it suits the purpose of an ad-
vocate to limit application of the precept to the original facts, the ar-
gument will be designed accordingly, and the opponent will take the
contrary view.
The question for the judge is critical. Where on that gradation of
propositions do we take our stand and say: "This proposition is the
decision of this case within the meaning of the doctrine of stare deci-
sis and we go no further?" To hold tight or to expand is a question of
line-drawing. Classification, then, is simply line-drawing.
Classification is also a process of abstraction. We can visualize it as
an inverted pyramid:

29. 1932 App. Cas. 562.

30. 217 N.Y. 382, 111 N.E. 1050 (1916).
 I
Still more and more facts

More and more facts

Where do we
draw the line?
Additional Facts

Precedent:
c ase facts

Our problem as judges is obvious: as the French General Robert

Nivelle told the Germans under General de Castelnau in World War
I, "17s ne passerontpas!"31 When do we say, "You go this far and no
farther"?
Professor Oliphant suggested another view of classification. Imag-
ine standing in the middle of the field in a stadium and looking at the
seats. If you focus on one seat on the lower level, the angle between
you and the seat is rather slight; if you look at a seat in the upper
level, it's a larger angle. 32 The smaller the angle, the closer the clas-
sified case to the original precedent.
Karl Llewellyn put it another way. He said that precedent can be
viewed as having a minimum or maximum effect. 33 The minimum
would be a strict view or small angle; the maximum, a loose view, or
large angle. The problem facing judges is how to treat the precedent.
Strict or loose. Lower seat or higher seat. Minimum or maximum.
We must remember that this is a value judgment, depending upon
the individual judge's notion of correct public policy. If we want to
expand the holding, we will do so. If we want to hold tight, we will.
As Llewellyn suggests, you can find that the putative precedent
"holds only of redheaded Walpoles in pale magenta Buick cars. '34
Is the process of classification strictly subjective? Is it simply a roll
of the dice? I do not think so. There are certain guidelines to help
us. And it is to that subject that I now turn.

VII.
How do we determine where to draw the line? Is there some gui-

31. The phrase translated means, "They shall not pass!" It has been attributed to
Petain but actually was uttered by General Nivelle at Verdun on January 23, 1916.
32. Oliphant, supra note 24, at 73.
33. K. LLEWELLYN, supra note 23, at 56-69.
34. Id. at 66-67.
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dance to know when the precedential force of one case must stop?
Or is it purely personal intuition? At what level in the model classi-
fication do we say that the rule must stop? Cardozo raised the same
sort of question 75 years ago:
What is it that I do when I decide a case? To what sources of information do I
appeal for guidance? In what proportions do I permit them to contribute to
the result? In what proportions ought they to contribute? If a precedent is
applicable, when do I refuse to follow it? If no precedent is applicable, how do
35
I reach the rule that will make a precedent for the future?
We judges seek answers to these questions throughout our judicial
careers. I do not purport to give you answers; however, I make bold
to suggest a method to find those answers. I emphasize that I will be
talking about methods, not answers. The methods are found in the
canons of logic. And here I draw freely upon passages of my most
recent book, Logic for Lawyers: A Guide to C7ear Legal Thinking
(1989).
Whether to extend or restrict precedent is inextricably wrapped up
in the concept of inductive reasoning. This means reasoning from a
particular to another particular, or from an assembly of particulars to
an inductive generalization. Let us start with generalizations.

A. Inductive Generalization and Analogy

In the law, the method of arriving at a general or, in the logician's
language, a universal proposition (a principle or doctrine) from the
particular facts of experience (legal rules or holdings of cases) is
called inductive generalization. This is reasoning from the particular
to the general.

35. B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 10 (1921).

 From the particular K>
rulings in the
square we induce a 0 0 0
generalization.

We borrow this process from the certainty of scientific laboratory

experiments. If nine particular pieces of blue litmus paper turn red
when dipped in acid, we may draw a general conclusion about what
happens to all blue litmus paper dipped in acid. We use the tech-
nique of enumeration to reach an inductive generalization. Unlike in
science, however, in law we do not assert that our conclusion is true,
only that it is more probably true than not. 36
Closely related to induced generalization is the process of analogy.
Analogy is reasoning from the particular to the particular. If, from
the experience of nine pieces of blue litmus paper, we conclude only
that the tenth piece will turn red, we reach a particular, not a gen-
eral conclusion.

36. But see K. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SCIEN-
TIFIC KNOWLEDGE vii (1962). Popper states the following:
The way in which knowledge progresses, and especially our scientific knowl-
edge, is by unjustified (and unjustifiable) anticipations, by guesses, by tenta-
tive solutions to our problems, by conjectures. These conjectures are
controlled by criticism; that is, by attempted refutations, which include se-
verely critical tests. They may survive these tests; but they can never be posi-
tively justified: they can neither be established as certainly true nor even as
'probable' . ...
Id. (emphasis in original).
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0 0
From one particular to
another we analogize.

The structure of these two types of inductive arguments-induced

generalization and analogy-is similar. There is, however, a basic dif-
ference, extremely important in the law, when the premises contain
a number of instances in which the certain attributes occur together.
+ + By inductive generalization we may infer that every in-
stance of the one attribute will also be an instance of the
other.
+ + By analogy we may infer that a different particular in-
stance of one attribute will also exhibit the other attribute.
Let us examine inductive generalization in the law:
A's oral conveyance of real estate is invalid.
B's oral conveyance of real estate is invalid.
C's oral conveyance of real estate is invalid.

Z's oral conveyance of real estate is invalid.

Therefore, all oral conveyances of real estate are invalid.
All inferences proceed on the assumption that the new instances will
exactly resemble the old one in all material circumstances. This is
purely hypothetical, of course, and sometimes we discover we are
mistaken. Thus, for years we proceeded along the following
induction:
A is a swan and it is white.
B is a swan and it is white.
 C is a swan and it is white.

Z is a swan and it is white.

Therefore, all swans are white.
But then Australia was discovered, and it was learned that there are
swans that are black. Inductive generalization underlies the develop-
ment of the common law. From many specific case holdings, we
reach a generalized proposition.
From the rules we create principles:

Doctrine

From many cases deciding that individual oral conveyances of real

estate were invalid, we reached the conclusion that all such convey-
ances were invalid. We arrived at that point by what Lord Diplock
described as "the cumulative experience of the judiciary."37 In gen-
eralization by enumeration, we can say that the larger the number of
specific instances, the more certain the resulting generalization. This
simply bades fealty to the concept of probability. It is the common-
law tradition of creating a principle by connecting the dots.
The process of analogy is a little different. Analogy does not seek
proof of an identity of one thing with another, but only a comparison
of resemblances. Unlike the technique of enumeration, analogy does
not depend upon the quantity of instances, but upon the quality of
resemblances between things. J.S. Mill reduced it to a formula: Two
things resemble each other in one or more respects; a certain proposi-
tion is true of one; therefore, it is true of the other. 38 In legal analo-
gies, we may have two cases which resemble each other in a great
many properties, and we infer that some additional property in one
will be found in the other. The process of analogy is used on a case-
by-case basis. It is used to compare the resemblance of prior cases to
the case at bar. Reaching a conclusion by enumeration has the bene-

37. Home Office v. Dorset Yacht Co., 1970 App. Cas. 1004, 1058 (Lord Diplock); see
also LOGIC FOR LAWYERS, supra note 3, at 113-22.
38. See J. MILL, A SYSTEM OF LOGIC RATIOCINATIVE AND INDUCTIVE 98-142 (8th ed.
1916).

620
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fit of experience. Reaching a conclusion by analogy has the benefit of

the high degree of similarity of the compared data.
The degree of similarity is always the crucial inquiry in analogies.
Clearly, you cannot conclude that a partial resemblance between two
entities is equal to an entire and exact correspondence. Here the
skill of the advocate will often be the determining factor. Plaintiff's
lawyer may argue that the historical event or entity in the putative
precedent, Alpha, bears many resemblances to the case at bar, Bravo.
The opponent will argue that although the facts in Alpha and Bravo
are similar in some respects, this does not mean that those similari-
ties are material and, therefore, relevant, or that the cases are similar
in other respects; he or she will argue that a false analogy is present.
What is one man's meat is another man's poison. What is one at-
torney's material and relevant fact in analogical comparisons is the
other attorney's immaterial and irrelevant fact. Often the art of ad-
vocacy resolves itself into convincing the court which facts in previ-
ous cases are indeed positive analogies and which are not. The judge
is required to draw this distinction. The successful lawyer is one who
is able to convince the judge to draw the distinction in the manner
most favorable to his or her client.
Points of unlikeness are as important as likeness. Comparison
without contrast is not an ideal to be followed. In examining the
cases, as a scientist in a laboratory, the judge should not look for the
rigid fixity of facts. Seldom are there perfectly identical experiences
in human affairs.
What is "reasonable" in determining analogies may permit endless
differences of opinion. And this is how it should be. The existence of
varying views in multijudge courts is one of the most vitalizing tradi-
tions animating the growth of the common law. Determining what is
"reasonable," however, is closely related to the overarching process
we call "reasoning," or solving a problem by pondering a given set of
facts to perceive their relationship and then reach a logical conclu-
sion. The application of "reasonableness" to "reason" is an ever-re-
curring scenario. If Delta has been found to be liable in set of
circumstances involving Alpha and Bravo and Charlie, we have to de-
cide, often without an exact precedent to guide us, whether Delta is
also liable if only facts Alpha and Bravo are present. To do this we
must determine which facts are material. Given the situation that
Delta is liable if set of circumstances Alpha and Bravo and Charlie
applies, we must decide if minus circumstance Charlie is material or
immaterial.
Two famous cases dramatically illustrate this. In Rylands v.
Fletcher,39 the defendant employed an independent contractor to
make a reservoir on his land. Because of the contractor's negligence
in not filling some unused mine shafts, water escaped and flooded the
plaintiff's mine. The case could have been decided solely on the the-
ory of the contractor's negligence, but the court chose to decide it on
the theory of strict liability by determining that the negligence of the
contractor was immaterial. Compare the actual facts of the case with
the facts deemed material by the court:
Actual facts
D had a reservoir built on his land.
Through the negligence of the contractor (our circumstances C)
Water escaped and injured P.
Conclusion: D is liable to P.
Materialfacts as seen by the court
D had a reservoir built on his land.
Water escaped and injured P.
Conclusion: D is liable to P.
Thus by determining that circumstance C was immaterial, the doc-
trine of absolute liability was established in 1868 and is still alive and
kicking today.
Another example is seen in the Court's treatment of segregation.
In Brown v. Board of Education,40 the Court addressed circumstance
B, segregation, in circumstance C, schools. It decided that under the
doctrine of "separate but equal," no segregated school could be con-
sidered "equal." In Mayor of Baltimore v. Dawson,41 the Court was
again presented with a segregation issue-this time minus circum-
stance C (i.e., not in the context of schools). The Court affirmed the
Fourth Circuit's ruling that the Brown decision applied to end segre-
gation in public beaches and bathhouses. Segregation minus circum-
stance C led to the same result in Holmes v. Atlanta42 (municipal
golf course) and Gayle v. Browder43 (buses). When Browder was de-
cided, it was obvious that, as a matter of law, the entire doctrine of
"separate but equal" was overruled and was hot only limited to the
facts in Brown-the special and particular problems of segregated ed-

39. 3 L.R.-E. & I. App. 330 (H.L. 1868).

40. 347 U.S. 483 (1954).
41. 350 U.S. 877 (1955) (per curiam).
42. 350 U.S. 879 (1955) (per curiam).
43. 352 U.S. 903 (1956) (per curiam).
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ucation. Changing social and judicial perspectives had rendered that

circumstance immaterial.
From this, we can learn something about the process of analogy, a
process which lies at the heart of the system of precedents. In anal-
ogy, it is mandatory to determine which facts in the previous case are
to be deemed material. The decision in a subsequent case depends as
much on the exclusion of "immaterial" facts as it does on the inclu-
sion of "material" ones.
The analytical process thus comes down to several steps: First, es-
tablish the holding of the case to learn the legal consequences at-
tached to a specific state of facts. Then exclude any dictum. The
next step is to determine whether that holding is a binding precedent
for a succeeding case containing prima facie similar facts. This in-
volves a double analysis: First state the material facts in the putative
precedent and then attempt to find those which are material in the
compared case. If these are identical, then the first case is binding
precedent for the second, and the court should reach the same con-
clusions as it did in the first. If the first case lacks any fact deemed
material in the second case, or contains any material fact not found
in the second, then it is not a direct precedent.
Listed are some suggestions to help determine which facts are ma-
terial in the process of analogy. Of course, it is important to recog-
nize that no individual test may succeed unless there is first a
complete understanding of the relevant substantive law precepts and
why they came to be. I suggest these tests with some trepidation and
advance them not as truths, not even as probabilities, but only as, to
use the most weasely of terms, "possible possibilities":
-All facts which the court specifically stated to be material
must be considered material.
-All facts which the court specifically stated to be immaterial
must be considered immaterial.
-All facts which the court impliedly treats as immaterial must
be considered immaterial.
-All facts of person, time, place, kind and amount are immate-
rial unless stated to be material.
-If the opinion omits a fact that appears in the record this may
be due to (a) oversight, or (b) an implied finding that the fact
is immaterial. Option (b) will be assumed to be the case in the
absence of other evidence.
-If the opinion does not distinguish between material and im-
 material facts, then all the facts set forth must be considered
material.
-A conclusion based on a hypothetical set of facts is dictum.44
This is not to say that these are the only tests of what facts are mate-
rial, and therefore, important, and what facts are merely interesting.
There are, no doubt, others. Whatever the test, the process requires
patience, care and thoroughness.
Ultimately, law is reduced, in the case of the judge, to the art of
drawing distinctions, and in the case of the lawyer, to the art of antic-
ipating the distinctions the judge is likely to draw. 45 To be sure, "[i]n
a system bound by precedent such distinctions may often be in the
nature of hair-splitting, this being the only instrument to hand for
avoiding the consequences of an earlier decision which the court con-
siders unreasonable, or as laying down a principle which is 'not to be
extended.' "46 As an art, both the study and practice of law consist of
problem solving. Because of the doctrine of stare decisis, however,
problem solving must not be performed on an ad hoc basis. We must
respect the overarching consideration that like cases be decided alike.
The real question, however, is deciding what is a like case.
To solve a problem fairly and justly we must employ techniques of
reflective thinking. Problems tend to originate in a confused and
often complicated setting. That, in essence, is what the difficult prob-
lem of precedent is all about. To think reflectively is to face a situa-
tion where there is obscurity, doubt, and conflict, and then transform
that situation to one that is clear, coherent and harmonious. It is a
constant effort to suggest, search, and compare, and then suggest,
search, and compare again and again what has gone before and what
may occur again.
Thus, it is critically important to use logical reflective thinking to
distinguish between what is or is not precedent. Logical process is
the cement that binds the determination of "reasonableness" with
the statement of "reasons." "Reasons" are, of course, the explanation
or justification of an act. Judges and lawyers give "reasons" to prove
that their conclusion reflects "reasonableness." "Reasons" are "the
how" in the process; "reasonableness" is "the why." "Reasons" are
the logical premises that justify the desired conclusion of "reasona-
bleness." What is used to coalesce "reasons" and "reasonableness" is
"reasoning," which we know as "logical process."
Always to be remembered is that logical order in the law is an in-
strumentality, not an end. John Dewey has told us that "[i]t is a

44. See Goodhart, Determining the Ratio Decidendi of a Case, 40 YALE L.J. 161
(1930).
45. See Lloyd, Reason and Logic in the Common Law, 64 L.Q. REV. 468, 482 (1948).
46. Id.
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means of improving, facilitating, clarifying the inquiry that leads up

to concrete decisions; primarily that particular inquiry which has just
been engaged in, but secondarily, and of greater ultimate importance,
47
other inquiries directed at making other decisions in similar fields."
We have emphasized that, unlike in mathematics and science, there
are few immutable major premises in the law. Logic must always be
tempered with experience. Holmes was certainly right when he said:
The life of the law has not been logic: it has been experience. The felt neces-
sities of the time, the prevalent moral and political theories, intuitions of pub-
lic policy, avowed or unconscious, even the prejudices which judges share with
their fellow-men, have had a good deal more to do than the syllogism in deter-
48
mining the rules by which men should be governed.

In the reasoning process of the law, we do not intend that the

guidelines to materiality, the rules of the syllogism, and the idiosyn-
crasies of formal and material fallacies be only a "ballet of bloodless
categories." 49 Instead, they are vibrant tools of analytic thought used
to give force, power, sinew, and respect to a process that adjudicates
claims, demands, and defenses asserted by live litigants in very live
cases and controversies. These legal rules and guidelines are society's
sword and shield to fend off, in Frankfurter's felicitous phrase, "It]he
tyranny of mere will and the cruelty of unbridled, unprincipled, un-
50
disciplined feelings."
Our use of logical processes in the law is neither perfect nor does it
claim to be. Inductive reasoning does not purport to reach truths; its
aim is to produce a result that is more probably true than not. Rules
of deductive reasoning go further. Properly applied, these rules com-
mand that if the premises are true, the conclusion must be true. But
the genius of the common law is that these premises are not fixed in
cement. In the popular idiom, they are always "up for grabs" to meet
changes in our social, political, philosophical, and economic climates.
When invention is active, when industry, commerce, and transporta-
tion bring about new forms of human relations, and when commu-
nity relations change because of the extension of ethical and moral
ideas, the law is dynamically able to keep pace with the variety and
subtlety of social change.

47. J. DEWEY, HOW WE THINK 19 (2d ed. 1933).

48. 0. HOLMES, THE COMMON LAW 1 (1881).
49. Lloyd, supra note 45, at 483 n.68.
50. As quoted in the New York Herald Tribune, August 30, 1962, on the occasion
of his retirement as a Supreme Court Justice. See As Felix Frankfurter,Retiring, Saw
Law vs. Tyranny, N.Y. Herald Tribune, Aug. 30, 1962, at 1, col. 2.
 VIII.
The questions that face the judges of the highest courts go much
further than a mere determination of when to apply a putative prece-
dent to the case at hand. We also must decide whether to overrule
the holding of the case. Do we bite the bullet and say so? Or do we
make meaningless distinctions and, in Karl Llewellyn's expression,
decide if it were a loose or strict precedent? 51 It is essential to study
the anatomy of a precedent-what it is, how it is created, how long it
should endure, and whether it should be left to wither or should be
nourished and strengthened.
We have repeatedly recognized that the principle of stare decisis
should not be a "confining phenomenon." We are mindful of the ob-
servation of Justice Schaefer of the Supreme Court of Illinois. "Pre-
cedent speaks for the past; policy for the present and the future. The
goal which we seek is a blend which takes into account in due pro-
portion the wisdom of the past and the needs of the present."5 2 The
doctrine of stare decisis is not a vehicle for perpetuating error, but
rather a legal concept which responds to the demands of justice and,
thus, permits the orderly growth processes of the law to flourish.
As said before, stare decisis, or, in its complete form, stare decisis
et non quieta movere, is usually translated "[t]o adhere to precedents,
and not to unsettle things which are established."53 The classic Eng-
lish statement is attributed to Coke: "[T]hose things which have been
so often adjudged, ought to rest in peace." 54 Blackstone's statement
was more detailed:
For it is an established rule to abide by former precedents, where the same
points come again in litigation: as well to keep the scale of justice even and
steady, and not liable to waver with every new judge's opinion; as also because
the law in that case being solemnly declared and determined, what before was
uncertain, and perhaps indifferent, is now become a permanent rule which it
is not in the breast of any subsequent judge to alter or vary from according to
55
his private sentiments.
My dear friend and colleague of happy memory, Roger Traynor,
noted:
Stare decisis, to stand by decided cases, conjures up another phrase dear to
Latin lovers-stare super antiquas vias, to stand on the old paths. One might
feel easier about that word stare if itself it stood by one fixed star of meaning.
In modern Italian stare means to stay, to stand, to lie, or to sit, to remain, to
keep, to stop, or to wait. With delightful flexibility it also means to depend, to
56
fit or to suit, to live and, of course, to be.
Why do we adhere to precedent? To a considerable extent rules

51. See K. LLEWELLYN, supra note 23, at 67-68.

52. Schaefer, Precedent and Policy, 34 U. CHI. L. REV. 3, 24 (1966).
53. BLACK'S LAW DICTIONARY 1261 (5th ed. 1979).
54. Spicer v. Spicer, Cro. Jac. 527, 79 Eng. Rep. 451 (K.B. 1620).
55. 1 W. BLACKSTONE, COMMENTARIES *69-70.
56. Traynor, Reasoning in a Circle of Law, 56 VA. L. REV. 739, 744-45 (1970).
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are grounded in factors of habit, tradition, historical accident, and

sheer intellectual inertia. We can also go back to the predictability
factor in law, recalling Holmes' definition, "The prophecies of what
the courts will do in fact, and nothing more pretentious, are what I
mean by the law." 57 In addition to these social and psychological
roots, precedent also appears to rest in the following values:
(1) Stability. It is clearly socially desirable that social relations should have a
reasonable degree of continuity and cohesion, held together by a frame-
work of reasonably stable institutional arrangements....
(2) Protectionof Reliance.... [PIrotection of persons who have ordered their
affairs in reliance upon contemporaneously announced law [is a value to
be safe-guarded] ....
(3) Efficiency in the Administration of Justice. If every case coming before
the courts had to be decided as an original proposition, without reference
to precedent, the judicial work-load would obviously be intolerable.
Judges must be able to ease this burden [of the judicial work-load] by
seeking guidance from what other judges have done in similar cases.
(4) Equality. [Persons similarly situated should be equally treated.] It is a
fundamental ethical requirement that like cases should receive like treat-
ment, that there should be no discrimination between one litigant and an-
other except by reference to some relevant differentiating factor....
(5) The Image of Justice. [This phrase does] not mean that any judicial deci-
sion ought to be made on the basis of its likely impact upon the court's
public relations, in the Madison Avenue sense, but merely that it is impor-
tant not only that the court provide equal treatment to persons similarly 58
situated, but that, insofar as possible, the court should appear to do so.
In 1970, Justice Harlan set forth similar values in Moragne v. States
Marine Lines, Inc.,
Very weighty considerations underlie the principle that courts should not
lightly overrule past decisions. Among these are the desirability that the law
furnish a clear guide for the conduct of individuals, to enable them to plan
their affairs with assurance against untoward surprise; the importance of fur-
thering fair and expeditious adjudication by eliminating the need to relitigate
every relevant proposition in every case; and the necessity of maintaining pub-
lic faith in the judiciary as a source of impersonal and reasoned judgments.
The reasons for59
rejecting any established rule must always be weighed against
these factors.

Ix.
When do we overrule? We start with Roscoe Pound's warning that
the law must be stable, yet it cannot stand still.60 No black letter
guidelines determine when to follow precedent. Weighty considera-

57. Holmes, supra note 1, at 461.

58. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51
VA. L. REV. 201, 235-37 (1965).
59. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).
60. Pound, The Theory of Judicial Decision II, 36 HARV. L. REV. 802, 825 (1923).
tions underlie the principle that courts should not lightly overrule
past decisions. Yet, Roger J. Traynor reminds us, "a bad precedent is
easier said than undone."61 Thus, the decision whether to stand still
often requires a balancing of hardships. We should not fall into the
trap confronted by Gulliver in his Travels:
It is a maxim among these men, that whatever has been done before may le-
gally be done again; and therefore they take special care to record all the deci-
sions formerly made, even those which have through ignorance or corruption
contradicted the rule of common justice and the general reason of mankind.
These under the name of precedents, they produce as authorities and thereby
endeavor to justify the most iniquitous opinions ....62
The court may be inclined to overrule "if the hardships it would
impose upon those who have relied upon the precedent appear not so
great as the hardships that would inure to those who would remain
saddled with a bad precedent."6 3 Again, Roger Traynor stated:
Legal minds at work on this word might well conjecture that to stare or not to
stare depends on whether decisis is dead or alive. We might inquire into the
life of what we are asked to stand by. In the language of stare decisers:
Primo,should it ever have been born? Secondo, is it still alive? Tertio, does it
64
now deserve to live?
As to be expected, the United States Supreme Court has written
extensively on the question of stare decisis. "[flt is indisputable that
stare decisis is a basic self-governing principle within the Judicial
Branch, which is entrusted with the sensitive and difficult task of
fashioning and preserving a judisprudential system that is not based
upon 'an arbitrary discretion.' "65 Stare decisis ensures that the law
will not change erratically and "permits society to presume that bed-
rock principles are founded in the law rather than in the proclivities
of individuals ...."66
The Court is fond of saying that it is difficult to overrule statutory
interpretations because theoretically Congress will correct the ruling
if dissatisfied. But with the Court it is sometimes a case of "do as I
say, not as I do." The deed occasionally speaks louder than the word.
Many statutory precedents have been explicitly overruled in the past
two decades. 67 Yet the Court seems to justify its action by suggesting

61. Traynor, La Rude Vita, La Dolce Giustizia; Or Hard Cases Can Make Good
Law, 29 U. CHI. L. REV. 223, 231 (1962).
62. R. KLUGER, SIMPLE JUSTICE 541 (1975) (citing J. SwiFT, GULLIVER'S TRAVELS
(1726)).
63. Traynor, supra note 61, at 231.
64. Traynor, supra note 56, at 745.
65. Patterson v. McClean Credit Union, 109 S. Ct. 2363, 2370 (1989) (citing THE
FEDERALIST No. 78, at 490 (A. Hamilton) (H. Lodge ed. 1888)).
66. Vasquez v. Hillery, 474 U.S. 254, 265 (1986).
67. See, e.g., Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978)
(overruling Monroe v. Pape, 365 U.S. 167 (1961)); Continental T.V., Inc. v. GTE Sylva-
nia, Inc., 433 U.S. 36 (1977) (overruling United States v. Arnold, Schwinn & Co., 388
U.S. 365 (1967)); Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment Rela-
tions Comm'n, 427 U.S. 132 (1976) (overruling International Union v. Wisconsin Em-
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categories that inform its occasional inclination to overrule. Because

most state and federal cases involve statutory construction, it may be
useful to summarize the reasons the Court gives for departing from
its stated "general rule" that disfavors overruling statutory
precedents:
" Intervening development of the law, either through the growth of judicial
doctrine or further action taken by Congress.
" A precedent may be a positive detriment to coherence and consistency on
the law, either because of inherent confusion created by an unworkable de-
cision, or because the decision poses a direct obstacle to the realization of
important objectives embodied in other laws.
" A precedent becomes more vulnerable as it becomes outdated and after be-
ing, in Cardozo's words, "tested by experience, has been found 68
to be incon-
sistent with the sense of justice or with the social welfare."1
It must be remembered that a judicial precedent may reflect as lit-
tle as 51 percent of the opinion writer's point of view at the time of
authorship. Depending upon the interest in the case by the non-writ-
ing judges at the time of the decision, their conviction certainly can-
not be guaranteed to be any higher. Too many appellate lawyers
operate on the assumption that the opinion of a unanimous court re-
flects 100 percent conviction and endorsement by all members of the
court. Often, the minimum of effective persuasion could effectively
move a court to a position desired by an advocate if it is realized that,
at best, the case holding is but a narrow rule limited to a particular
set of facts, and that the slightest change of facts could possibly bring
about a different result.
Another factor that must be reckoned with is that we judges do
change our minds. What do we say when we do this? I admire what
Justice Potter Stewart said, concurring in Boys Markets, Inc. v. Retail
Clerks Union, Local 770, where the Court reversed itself in a prior
decision rendered only eight years before:
When Sinclair Refining Co. v. Atkinson . . . was decided in 1962, I sub-
scribed to the opinion of the Court. Before six years had passed I had reached
the conclusion that the Sinclair holding should be reconsidered, and said so
.... Today I join the Court in concluding "that Sinclair was erroneously de-

ployment Relations Bd., 336 U.S. 245 (1949)); Braden v. 30th Judicial Circuit Court of
Ky., 410 U.S. 484 (1973) (overruling Ahrens v. Clark, 335 U.S. 188 (1948)); Andrews v.
Louisville & N.R.R., 406 U.S. 320 (1972) (overruling Moore v. Illinois Cent. R.R., 312
U.S. 630 (1941)); Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235
(1970) (overruling Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962)); Peyton v.
Rowe, 391 U.S. 54 (1968) (overruling McNally v. Hill, 293 U.S. 131 (1934)); see also Bur-
net v. Coronado Oil & Gas Co., 285 U.S. 393, 405-13 (1931) (Brandeis, J., dissenting)
(collecting cases overruled by the Court prior to 1931).
68. B. CARDOZO, supra note 35, at 150. See generally Patterson, 109 S. Ct. at 2370.
 cided and that subsequent events have undermined its continuing validity

In these circumstances the temptation is strong to embark upon a lengthy

personal apologia. But since Mr. Justice Brennan has so clearly stated my
present views in his opinion for the Court today, I simply join in that opinion
and in the Court's judgment. An aphorism of Mr. Justice Frankfurter pro-
vides me refuge: "Wisdom too often never comes, and so one ought not to re-
'69
ject it merely because it comes late."
I also admire the opinion of Justice Jackson, concurring in McGrath
v. Kristensen:
And Mr. Justice Story, accounting for his contradiction of his own former
opinion, quite properly put the matter: "My own error, however, can furnish
no ground for its being adopted by this Court .... [A]n escape.., was taken
by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an ear-
lier opinion of his Lordship: "I can only say that I am amazed that a man of
my intelligence should have been guilty of giving such an opinion." If there
are other ways of gracefully and good-naturedly7 0surrendering former views to
a better considered position, I invoke them all.
Or Baron Bramwell's simple statement, in Andrews v. Styrap: "The
matter does not appear to me now as it appears to have appeared to
'71
me then.
Too many advocates and commentators assume that all precedents
are equivalent, that all are precedents fortissimo. As Judge Walter
V. Schaefer has cogently observed, "To the working profession there
is no such thing as an opinion which is just 'a little bit' precedent or a
precedent pianissimo. All of them carry the same weight. ' 72 This,
however, is simply not so. There are precedents, and there are prece-
dents. All are not currency of equal value.
A limitation upon the binding authority of precedent may be noted
by the statement of the Court of Appeals of the State of New York:
"But the doctrine of stare decisis... does not apply to a case where it
can be shown that the law has been misunderstood or misapplied, or
73
where the former determination is evidently contrary to reason."
From this we can say that one ground for departing from what would
otherwise be precedent is an error in the logical argument in the
opinion of the prior case. The other ground is that a case should not
be followed if it is based upon principles enshrining social or eco-
nomic conceptions which have been legislatively abandoned or other-
wise by-passed. Chancellor Kent wrote:
A solemn decision upon a point of law arising in any given case, becomes an
authority in a like case, because it is the highest evidence which we can have

69. Boy's Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 255 (1970)
(Stewart, J., concurring) (citations omitted) (quoting Henslee v. Union Planters Bank,
335 U.S. 595, 600 (1949)).
70. McGrath v. Kristensen, 340 U.S. 162, 178 (1950) (Jackson, J., concurring) (cita-
tions omitted).
71. Andrews v. Styrap, 26 L.T.R. (N.S.) 704, 706 (Ex. 1872).
72. Schaefer, supra note 52, at 7.
73. Rumsey v. New York & N.E.R.R., 133 N.Y. 79, 85, 30 N.E. 654, 655 (1892).
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of the law applicable to the subject, and the judges are bound to follow that
decision so long as it stands unreversed, unless it can be7 4shown that the law
was misunderstood or misapplied in that particular case.

X.
As explained, all precedents do not have the same bite. Some are
less powerful than others. Notable commentators have addressed
certain aspects of this phenomenon. For example, Henry Campbell
Black observed:
A decision is not authority as to any questions of law which were not raised or
presented to the court, and were not considered and decided by it, even
though they were logically present in the case and might have been argued,
and even though such questions, if 75
considered by the court, would have caused
a different judgment to be given.
Black has highlighted the importance of examining carefully the
opinion, if not the briefs, in the prior case. 76 Were the issues
presented, considered and decided? If not, even though they could
have been, the prior decision should not be considered a binding pre-
cedent on unaddressed points. If so, the prior decision is to be consid-
ered binding precedent.
To be sure, issues raised in a case stem from the facts presented.
Facts, therefore, are of controlling importance, as explained by Pro-
fessor Brumbaugh:
Decisions are not primarily made that they may serve the future in the form
of precedents, but rather to settle issues between litigants.
Their use in after cases is an incidental aftermath. A decision, therefore,
draws its peculiar quality of justice, soundness and profoundness from the
particular facts and conditions of the case which it has presumed to adjudi-
cate. In order, therefore, that this quality may be rendered with the highest
measure of accuracy, it sometimes becomes necessary to expressly limit its ap-
77
plication to the peculiar set of circumstances out of which it springs.
As emphasized, the use of the precedent's authority depends upon,
and is limited to "the particular facts and conditions of the case
which it has presumed to adjudicate. 7 8s We should not apply prece-
dents blindly. The putative precedent must be analyzed carefully to
ascertain the actual holding of the court to determine whether a sim-
ilarity of facts and issues exists. It must be studied to determine
whether the precept emerging therefrom is the case's true holding or
merely dictum.

74. KENT'S COMMENTARIES 475 (12th ed. 1896).

75. H. BLACK, LAW OF JUDICIAL PRECEDENTS 37 (1912).
76. Id.
77. J. BRUMBAUGH, LEGAL REASONING AND BRIEFING 171-72 (1917).
78. Id. at 172.
 Is the principle or precept deduced from the prior case contained in
a thorough, well-reasoned opinion which was, itself, based upon clear
and binding precedents? Is the prior case one that is seriously weak-
ened by a trenchant dissent, or by a concurring opinion which casts
doubt upon the wisdom of the majority's reasoning? Is the applicable
precept found in a single case, or has it been restated and applied in
several cases which have reaffirmed its value and social desirability?
Clearly, the currency value of precedents varies widely. At one ex-
treme are those that are rock-bound, the precedents fortissimo; at
the other extreme are those that must be subject to question.
It is important to note again here that only the holding is entitled
to recognition and respect as binding authority. Dictum is merely
persuasive, although in varying degrees. Factors that affect or deter-
mine the degree of persuasiveness accorded to dicta are many and va-
ried. How pertinent or relevant is the dictum to the decision
wherein it was uttered? Does the court or judge who authored the
dictum enjoy a special respect for scholarship and wisdom? Is the
dictum reasonable? Although prior cases have precedential and per-
suasive value, their relative value as precedents and as persuasions
may differ radically.

A. Precedent and PersuasiveAuthority

Absent formal overruling, judges must follow a precedent whether
they approve of it or not. It binds them and excludes judicial discre-
tion for the future. On the other hand, judges are under no obliga-
tion to follow persuasive authority that lacks the force of a true
precedent. They will consider it, but will attach to it only the weight
such authority seems to deserve.
Persuasive authority can be considered merely historical comment.
It depends for its influence upon its own merits, not upon any legal
claim which it has to recognition, as opposed to precedent, which is
considered a legal source of law. For example, different types of
cases are more properly classified as persuasive authority than as
binding precedent:
+ + Dictum.
+ + Decisions of courts of other jurisdictions.
+ + Plurality, concurring and dissenting opinions.
+ + The summary affirmance by the U.S. Supreme Court: a hybrid
type that both is and is not precedent.
+ + The denial of a writ of certiorari.

1. Courts of Other Jurisdictions

A decision of a superior court is an authoritative precedent for all
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inferior courts in the same judicial hierarchy. There is a bit of pro-

vincialism or parochialism here. A decision of the New York Court
of Appeals is authoritative precedent for all New York trial courts,
but it is only a persuasive authority for courts in Pennsylvania be-
cause those courts are in another judicial hierarchy.

2. Plurality Opinions

In the American tradition, a full-fledged precedent must be pro-

nounced by a majority of the court. An opinion emanating from a
court that reflects only a plurality view does not have the power of a
majority opinion. Reasons given by the plurality are only persuasive
authority. Here we must be careful to distinguish between the spe-
cific holding of a case and the reasons that support it. When concur-
rences are added to a plurality opinion, a true holding of the court
has been established: a detailed legal consequence has accompanied a
detailed set of facts. But, because the holding is not supported by a
majority reasoning, the power and vitality of the holding is diluted.
In Berkebile v. Brantly Helicopter Corp.,79 for example, the plural-
ity and concurring judges agreed that the trial judge's jury charge on
abnormal use in a product liability case improperly directed a verdict
for the manufacturer by removing from the jury one of the plaintiff's
theories that the helicopter was defectively designed. However, the
opinions contained different reasons for this decision. The plurality
opinion stated that the requirement that a product be "unreasonably
dangerous" should be purged from Pennsylvania strict liability law,
the court having previously adopted in ipsissimis verbis the entire
text of section 401A of the Restatement (Second) of Torts as "the law*
of Pennsylvania." 8 0 But only one other justice joined in the writer's
opinion; three justices concurred only in the result; and two justices
concurred specially, each filing a short opinion.
Later in Bair v. American Motors Corp.,81 a diversity case, the
Court of Appeals for the Third Circuit refused to recognize as Penn-
sylvania law the court's opinion in Berkebile, that proof of "unrea-
sonably dangerous" was not necessary in a products liability case
because it had originated in a plurality opinion. In so holding, the
federal court followed Commonwealth v. Little,8 2 in which the Penn-

79. 462 Pa. 83, 337 A.2d 893 (1975) (plurality opinion).
80. Id. at 90-91, 337 A.2d at 900 (plurality opinion).
81, 535 F.2d 249, 250 (3d Cir. 1976).
82. 432 Pa. 256, 248 A.2d 32 (1968).
sylvania State Supreme Court declined to follow a prior opinion rep-
resenting the views of only two of its justices, the court being of the
view that an opinion "joined by only one other member of this Court,
has no binding precedential value."83
The United States Supreme Court recently agreed to review Hor-
ton v. California.84 At issue is the scope, or continued vitality of the
high court's 1971 ruling in Coolidge v. New Hampshire,8 5 which al-
lowed the use of evidence found in plain view only if discovered inad-
vertently. A California appeals court said the 1971 Supreme Court
holding is not binding precedent because it was reached by only four,
86
not five, justices.
Because a plurality opinion is not an opinion of the court, all appel-
late courts should adopt the United States Supreme Court's practice
of labeling a plurality opinion as an "Opinion Announcing the Judg-
ment of the Court," rather than simply "Opinion" or "Opinion of the
Court." A few years ago we asked West Publishing Company to note
this in its headnotes when only a plurality opinion is forthcoming. In
such cases West usually now states in the headnotes, for example,
"Opinion by Heffernan, C.J., with two others concurring." This is
most helpful in determining the precedential value of a case..

3. Summary Affirmance by the United States Supreme Court

Another circumstance that does not have the fullest bite of prece-
dent is a summary affirmance by the United States Supreme Court.
In Illinois Elections Board v. Socialist Workers Party, the Court ex-
plained: "[We] note ...that summary affirmances have considerably
less precedential value than an opinion on the merits. . . . '[Ulpon
fuller consideration of an issue under plenary review, the Court has
not hesitated to discard a rule which a line of summary affirmances
may appear to have established.' "87

4. The Denial of a Writ of Certiorari

It is hornbook law that "[t]he denial of a writ of certiorari imports
no expression of opinion upon the merits of the case, as the bar has
been told many times."8 8 Prior to 1988, a real difference existed be-
tween the two methods of seeking U.S. Supreme Court review: the
first, by "a petition for certiorari"; the other, by "appeal by a party."

83. Id. at 260, 248 A.2d at 35.

84. 110 S. Ct. 231 (1989).
85. 403 U.S. 443 (1971).
86. People v. Miller, 196 Cal. App. 3d 846, 850-51, 242 Cal. Rptr. 179, 181 (1987).
87. Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 180-81 (1979) (ci-
tations omitted).
88. United States v. Carver, 260 U.S. 482, 490 (1923).
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Although the Court seemed bound by law to hear all "appeals" from
the state courts (presenting an appropriate constitutional law chal-
lenge), because of the vast number of cases, it devised a concept of
dismissing appeals "for lack of jurisdiction," ostensibly for the reason
that no substantial federal question had been raised. Although re-
corded case law is scant, if in fact non-existent, many astute lawyers
in the criminal law field believed that where a direct appeal from a
state court decision in a criminal case had been denied by the
Supreme Court, the appellant was then precluded from seeking relief
to the federal court under federal habeas corpus,8 9 because the Court
had rendered a final decision that no substantial federal question was
presented. In other words, this decision was considered to be a bind-
ing precedent. Lacking a federal question, federal habeas corpus re-
lief was, therefore, foreclosed.
Congress eliminated this trap for the unwary who mistakenly
would take an appeal rather than file a petition for certiorari in such
cases. In 1988, it amended section 1257 of title 28 to abolish "appeal"
and now provides that final judgment "rendered by the highest court
of a State in which a decision could be had, may be reviewed by the
Supreme Court by writ of certiorari." 90 To be sure, the amendment
was not designed solely to protect defendants in criminal cases;
rather, its purpose was to give the Court almost total discretion to ac-
cept cases for review. However, its effect has been to allow the alter-
native relief of federal habeas corpus review for the unwary
counselor who may previously have been bound by a final determina-
tion on appeal.

XI.
Well, there it is. I do not know whether I have helped or made a
confusing subject even more so. I have tried to suggest guidelines to
help you decide whether to kiss or kill the precedential dragon. In
either event you must go back to its very definition. In so doing, you
recognize that a case holding in the common-law tradition is fact spe-
cific. When you compare a putative precedent with the case at bar,
you compare facts and not the reasons stated. Yet, I freely admit
that my emphasis on facts for definitional purposes is not shared by
those who seem to say that the reasons given in the holding are also

89. See 28 U.S.C. §§ 2244, 2254 (1982).

90. Id. § 1257 (1988), as amended by Act of June 27, 1988, Pub. L. No. 100-352, § 3,
102 Stat. 662 (1988).
the precedent.91
I have tried to show that reasons go only to support a decision, and
when original reasons are later proved to be faulty, or when social,
economic, or political conditions have changed, it is legitimate not to
follow the holding because the reasoning is no longer valid. This is
the theory that "where stops the reason, there stops the rule." But
all is not that quick and easy. There are times when'the rule must be
held valid for reasons other than those stated in the original opinion.
Judges will continue to struggle with what is and is not precedent.
The source of the struggle may be an uneasiness with what are and
are not material facts in the compared cases, or it may be a struggle
on where to hold the line in the expansion of facts from the specific
to the abstract. There are guidelines, to be sure, but often it is a
question of a value judgment, what Max Weber described as "'practi-
cal' evaluations of a phenomenon which is capable of being ... wor-
thy of either condemnation or approval." 9 2 He distinguished between
"logically demonstrable or empirically observable facts" and "the
value judgments which are derived from practical standards, ethical
standards or world views." 93 Then too, as Justice Walter V. Schaefer
explained, the personality of a given judge may be the decisive factor:
If I were to attempt to generalize, as indeed I should not, I should say that
most depends upon the judge's unspoken notion as to the function of his
court. If he views the role of the court as a passive one, he will be willing to
delegate the responsibility for change, and he will not greatly care whether
the delegated authority is exercised or not. If he views the court as an instru-
ment of society designed to reflect in its decisions the morality of the commu-
nity, he will be more likely to look precedent in the teeth and to measure it
94
against the ideals and the aspirations of his time.
Tail-tweaking of dragons is not a task for the faint-hearted. But,
you know that. You can still hear echoes of law school's first year
when professors warned about and demonstrated the very difficult
problems in the practice of law. I can only suggest you learn from
the experience of dragon-slayers:
"Kiss me!" cried the dragon, which had already devoured many gallant
knights for declining to kiss it. "Give you a kiss," murmured the prince; "Oh,
certainly, if that's all! Anything for a quiet life."
So saying, he kissed the dragon, which instantly became a most beautiful prin-
cess; for she had lain enchanted as a dragon by a wicked magician, till some-
95
body should be bold enough to kiss her.

91.See Goodhart, Determining the Ratio Decidendi of a Case, 40 YALE L.J. 161
(1930).Professor Goodhart's method is summarized in G. CHRISTIE, JURISPRUDENCE
921-44(1973); R. CROSS, supra note 22, at 67-76; see also id. at 35-40, 104-05.
92.M. WEBER, Value Judgments in Social Science, in MAX WEBER SELECTIONS IN
TRANSLATION 69 (W. Runciman ed. 1987).
93. Id.
94. Schaefer, supra note 52, at 23.
95. A. LANG, The Lady Dragonissa,in A CAVALCADE OF DRAGONS (R. Green ed.
1970).