Precedent in Common-Law Decision-Making

Precedent in Legal Reasoning: Core Ideas

• Courts in common-law systems both make and apply rules through precedent.

• Precedent is the central feature that differentiates legal reasoning from many other forms of practical reasoning.

• Two fundamental spatial dimensions structure precedent:

  • Vertical (hierarchical) force—lower courts must obey higher-court decisions within the same jurisdiction.

  • Horizontal (intra-court) force—a court’s own prior decisions constrain its future decisions under the doctrine of stare decisis (“let the decision stand”).

Vertical Precedent (Hierarchy of Authority)

• Each jurisdiction has an internal ladder of authority.

  • Wisconsin example: Trial Courts → Intermediate Court of Appeals → Wisconsin Supreme Court (highest for state law).

• A lower court that dislikes a higher court’s rule can criticize it in dicta but must still follow it.

• The command is categorical: once the higher court has spoken, lower courts have “no business” ignoring or revising the rule.

Horizontal Precedent (Stare Decisis)

• Operates within one level of the hierarchy—typically the highest court of the jurisdiction.

• Presumes that the same court will follow its own earlier decisions absent a special justification (e.g., major doctrinal, factual, or social change).

• Promotes stability, predictability, and equal treatment of like cases.

• Not a formalism only: it underwrites rule-of-law values.

Illustrative Hypothetical: Wisconsin Trilogy

• Wheat Case (Year 0)

  • Oral handshake between Farmer #1 and Baker #1 for wheat.

  • Wheat not delivered; Baker sues for breach.

  • Wisconsin Supreme Court holds: Oral contracts are enforceable; writing unnecessary.

  • Establishes controlling precedent.

• Corn Case (Year 2)

  • Farmer #2 & Baker #2, oral contract for corn.

  • Trial court bound vertically by Wheat Case → rules for Baker.

  • Farmer appeals; Wisconsin Supreme Court confronted with its own precedent.

  • Under horizontal stare decisis it should apply Wheat Case and affirm.

• Land Case (Year X)

  • Oral deal for unique parcel outside Madison.

  • Buyer invokes Wheat & Corn precedents.

  • Seller’s counsel crafts distinguishing argument:

  • Land is unique; not fungible like commodities.

  • Higher dollar value; greater stakes.

  • Long-standing tradition of formality in land transfers.

  • Goal: persuade court to keep Wheat & Corn intact but carve out a different rule requiring a writing for land transactions.

Litigant Strategies vis-à-vis Precedent

1. Full-frontal attack: urge the court to overrule existing precedent.

   • Rarely successful; Wheat & Corn likely safe.

2. Distinguishing: argue that present facts pull the case outside the precedent’s rationale.

   • Creates “space” without overturning precedent.

3. Persuasion through external authority (see next heading).

Binding vs. Persuasive Authority

• Binding (Mandatory) Authority

  • Comes from a higher court within the same jurisdiction or from the same court’s prior decisions (horizontal).

  • Failure to follow constitutes reversible error.

• Persuasive Authority

  • Decisions from courts in other jurisdictions (e.g., Illinois looking at Wisconsin).

  • Secondary sources (treatises, Restatements) may also persuade.

  • Lawyers pile up persuasive authorities to influence an undecided court on an open question.

• Illustrative contrast:

  • Wisconsin trial court → Wheat Case = binding.

  • Illinois Supreme Court → Wheat Case = persuasive only.

Policy Reasons for Stare Decisis

• Predictability & Reliance: individuals and businesses plan behavior around settled law.

• Equality: like cases treated alike; fosters legitimacy.

• Judicial Economy: limits need to relitigate the same issues.

• Constraint on Judicial Will: prevents ad-hoc or politicized shifts each time the court’s personnel change.

Practical Take-Aways for Students & Lawyers

• Always map the hierarchy: identify which court’s precedent binds which tribunal.

• When precedent is adverse, explore:

  • Distinguishing facts,

  • Changed circumstances,

  • Doctrinal inconsistencies that may justify overruling.

• Collect persuasive authorities to buttress arguments on questions of first impression.

• Remember the doctrinal vocabulary:

  • Vertical vs. Horizontal Precedent,

  • Binding vs. Persuasive Authority,

  • Stare Decisis,

  • Distinguishing.

Ethical & Practical Implications

• Consistency of law serves societal fairness; abrupt overrulings can erode trust.

• Lawyers have professional duties to cite adverse binding authority even while attacking or distinguishing it.

• Judges balance respect for precedent with responsibility to correct egregious or unjust rules when compelling reasons surface.