Now for a while I am going to risk confusion for the sake of talking simply. I am going to treat as the rule of the case the ratio decidendi, the rule the court tells you is the rule of the case, the ground, as the phrase goes, upon which the court itself has rested its decision. For there is where you must begin, and such refinements as are needed may come after.
The court, I will assume, has talked for five pages, only one of which portrayed the facts assumed. The rest has been discussion. And judgment has been given for the party who won below: judgment affirmed. We seek the rule.
The first thing to note is this: no rule can be the ratio decidendi from which the actual judgment (here: affirmance) does not follow. Unless affirmance follows from a rule, it cannot be the rule which produced the actual holding of affirmance. But that holding is the decision, and the court speaks ex cathedra only as to the dispute decided, and only as to the decision it has made. At this point, too, I think you begin to see the bearing of the procedural issue. There can be a decision (and so an ex cathedra ration) only as to a point which is before the court. But points come before a court of review by way of specific complaint about specific action of the court below, and in no other way. Hence nothing can be held which is not thus brought up.
You will have noted that these two statements are not quite the same. For the losing party may have complained of five, or fourteen, different rulings by the court below, but the final judgment below is affirmed or reversed but once. [Llewellyn then asks how we should interpret an appellate court’s reversal of the judgment on each of the five issues raised in the appeal. Merely because reversal on only one point would have sufficed to reverse the judgment didn’t make the ruling on the other points mere dicta, because they were called for by the facts and issues in the case. Still, the ruling on any one of the points carries less weight than it would if it had been on the only issue in the case, perhaps because the court may not have ‘sweated’ over each point as much as it would had the point been the only issue in the case. Suppose, too, the judgment is reversed on one point and affirmed on the other four. The points affirmed are not dicta but their authority is weak since they do not meet the other test: the actual judgment does not logically follow from them.]
But our troubles with the ration decidendi are not over. We meet forthwith a further formal rule. Our judge states his facts, he argues his position, he announces his rule. And lo, he seems but to have begun. Once clean across the plate. But he begins again, winds up again, and again he delivers his ratio – this time, to our puzzlement, the words are not the same. At this point it is broader than it was before, there it is narrower. And like as not he will warm up another time, and do the same job over – differently again. I have never made out quite why this happens. A little, it may be due to a lawyer’s tendency to clinch an argument by summarizing its course, when he is through. A little, it may be due to mere sloppiness of composition, to the lack, typical of our law and all its work, of a developed sense of form, juristic or esthetic, for what the Romans knew as elegantia. Sometimes I get a wry suspicion that the judge repeats because he is uneasy on his ground, that he lifts up his voice, prays his conclusion over loud and louder, to gain and make conviction, much like an advertiser bare of argument except his slogan. At other times I feel as I read opinions the thrill of adventure in an undiscovered country; the first and second statements of the ratio, with all that has led up to them, are like the first and second reconnoiterings of strange hills, like first and second chartings of what has been found and what surmised – knowledge and insight growing as the opinion builds to its conclusion. But whatever the reason, recurrent almost-repetition faces us; also the worry that the repetition is seldom exact. Which phrasing are we then to tie to?
Perhaps in this, as in judging how far to trust a broadly-stated rule, we may find guidance in the facts the court assumes. Surely this much is certain. The actual dispute before the court is limited as straitly by the facts as by the form which the procedural issue has assumed. What is not in the facts cannot be present for the decision. Rules which proceed an inch beyond the facts must be suspect.
But how far does that help us out? What are the facts? The plaintiff’s name is Atkinson and the defendant’s Walpole. The defendant, despite his name, is an Italian by extraction, but the plaintiff’s ancestors came over with the Pilgrims. The defendant has a schnauzer-dog named Walter, red hair, and $30,000 worth of life insurance. It is about an auto accident. The defendant’s auto was a Buick painted pale magenta. He is married. His wife was in the back seat, an irritable somewhat faded blonde. She was attempting back seat driving when the accident occurred. He had turned around to make objection. In the process the car swerved and hit the plaintiff. The sun was shining; there was a rather lovely dappled sky low to the West. The time was late October on a Tuesday. The road was smooth, concrete. It had been put in by the McCarthy Road Work Company. How many of these facts are important to the decision? How many of these facts are, as we say, legally relevant? Is it relevant that the road was in the country or the city; that it was concrete or tarmac or of dirt; that it was a private or a public way? Is it relevant that the defendant was driving a Buick, or a motorcar, or a vehicle? Is it important that he looked around as the car swerved? Is it crucial? Would it have been the same if he had been drunk, or had swerved for fun, to see how close he could run by the plaintiff, but had missed his guess?
Is it not obvious that as soon as you pick up this statement of the facts to find your legal bearings you must discard some as of no interest whatsoever, discard others as dramatic but as legal nothings? And is it not clear, further, that when you pick up the facts which are left and which do seem relevant, you suddenly cease to deal with them in the concrete and deal with them instead in categories which you, for one reason or another, deem significant? It is not the road between Pottsville and Arlington; it is "a highway." It is not a particular pale magenta Buick eight, number 732507, but "a motorcar," and perhaps even "a vehicle." It is not a turning around to look at Adoree Walpole, but a lapse from the supposedly proper procedure of careful drivers, with which you are concerned. Each concrete fact of the case arranges itself, I say, as the representative of a much wider abstract category of facts, and it is not in itself but as a member of the category that you attribute significance to it. But what is to tell you whether to make your category "Buicks" or "motorcars" or "vehicles"? What is to tell you to make your category "road" or "public highway"? The court may tell you. But the precise point that you have up for study is how far it is safe to trust what the court says. The precise issue you are attempting to solve is whether the court’s language can be taken as it stands, or must be amplified, or must be whittled down.
This brings us at last to the case system. For the truth of the matter is a truth so obvious and trite that it is somewhat regularly overlooked by students. That no case can have a meaning by itself! Standing alone it gives you no guidance. It can give you no guidance as to how far it carries, as to how much of its language will hold water later. What counts, what gives you leads, what gives you sureness, that is the background of the other cases in relation to which you must read the one. They color the language, the technical terms, used in the opinion. But above all they give you the wherewithal to find which of the facts are significant, and in what aspect they are significant, and how far the rules laid down are to be trusted.
Here, I say, is the foundation of the case system. For what, in a case class, do we do? We have set before you, at either the editor’s selection or our own, a series of opinions which in some matter are related. They may or may not be exactly alike in their outcome. They are always supposedly somewhat similar on their legally relevant facts. Indeed, it is the aspects in which their facts are similar which give you first guidance as to what classes of fact will be found legally relevant, that is, will be found to operate alike, or to operate at all, upon the court. On the other hand, the states of facts are rarely, if ever, quite alike. And one of the most striking problems before you is: when you find two cases side by side which show a difference in result, then to determine, what difference in their facts, or what difference in the procedural set-up, has produced that difference in result. Those are the two problems which must be in your mind as you examine the language of the opinions. I repeat them. First, what are the significant categories of facts, and what is their significance to the court? Second, what differences in facts or in procedural set-up produce differences in the court’s action when the situations are otherwise alike?
* * *
We turn first to what I may call the orthodox doctrine of precedent, with which, in its essence, you are already familiar. Every case lays down a rule, the rule of the case. The express ratio decidendi is prima facie the rule of the case, since it is the ground on which the court chose to rest its decision. But a later court can reexamine the case and can invoke the canon that no judge has power to decide what is not before him, can, through examination of the facts or of the procedural issue, narrow the picture of what was actually before the court and can hold that the ruling made requires to be understood as thus restricted. In the extreme form this results in what is known as expressly "confining the case to its particular facts." This rule holds only of redheaded Walpoles in pale magenta Buick cars. And when you find this said of a past case you know that in effect it has been overruled. Only a convention, a somewhat absurd convention, prevents flat overruling in such instances. It seems to be felt as definitely improper to state that the court in a prior case was wrong, peculiarly so if that case was in the same court which is speaking now. It seems to be felt that this would undermine the dogma of the infallibility of courts. So lip service is done to that dogma, while the rule which the prior court laid down is disemboweled. The execution proceeds with respect, with mandarin courtesy.
Now this orthodox view of the authority of precedent – which I shall call the strict view – is but one of two views which seem to me wholly contradictory to each other. It is in practice the dogma which is applied to unwelcome precedents. It is the recognized, legitimate, honorable technique for whittling precedents away, for making the lawyer, in his argument, and the court, in its decision, free of them. It is a surgeon’s knife.…
…[W]hen you turn to the actual operations of the courts, or, indeed, to the arguments of lawyers, you will find a totally different view of precedent at work beside this first one. That I shall call, to give it a name, the loose view of precedent. That is the view that a court has decided, and has decided authoritatively, any point or all points on which it chose to rest a case, or on which it chose, after due argument, to pass. No matter how broad the statement, no matter how unnecessary on the facts or the procedural issues, if that was the rule the court laid down, then that the court has held. Indeed, this view carries over often into dicta, and even into dicta that are grandly obiter. In its extreme form this results in thinking and arguing exclusively from language that is found in past opinions, and in citing and working with that language wholly without reference to the facts of the case which called the language forth.
Now it is obvious that this is a device not for cutting past opinions away from judges’ feet, but for using them as a springboard when they are found convenient. This is a device for capitalizing welcome precedents. And both the lawyers and judges use it so. And judged by the practice of the most respected courts of ordinary statute, this doctrine of precedent is like the other, recognized, legitimate, honorable.
What I wish to sink deep into your minds about the doctrine of precedent, therefore, is that it is two-headed. It is Janus-faced. That it is not one doctrine, nor one line of doctrine, but two, and two which, applied at the same time to the same precedent, are contradictory of each other. That there is one doctrine for getting rid of precedents deemed troublesome and one doctrine for making use of precedents that seem helpful. That these two doctrines exist side by side. That the same lawyer in the same brief, the same judge in the same opinion, maybe using the one doctrine, the technically strict one, to cut down half the older cases that he deals with, and using the other doctrine, the loose one, for building with the other half. Until you realize this you do not see how it is possible for law to change and develop, and yet to stand on the past. You do not see how it is possible to avoid the past mistakes of courts, and yet to make use of every happy insight for which a judge in writing may have found expression …
Nor, until you see this double aspect of the doctrine-in-action, do you appreciate how little, in detail, you can predict out of the rules alone; how much you must turn, for purposes of prediction, to the reactions of the judges to the facts, and to the life around them …
Applying this two faced doctrine of precedent to your work in a case class you get, it seems to me, some such result as this. You read each case from the angle of its maximum value as precedent, at least from the angle of its maximum value as a precedent of the first water. You will recall that I recommended taking down the ratio decidendi in substantially the court’s own words. You see now what I had in mind. On the other hand, you will read each case for its minimum value as a precedent, to set against the maximum. In doing this you have your eyes out for the narrow issue in the case, the narrower the better. The first question is, how much can this case fairly be made to stand for by a later court to whom the precedent is welcome: You may well add – although this will be slightly flawed authority – the dicta which appear to have been well considered. The second question is, how much is there in this case that cannot be got around, even by a later court that wishes to avoid it?
You have now the tools for arguing from that case as counsel on either side of a new case. You turn then to the problem of prediction. Which view will the same court, on a later case on slightly different facts, take: will it choose the narrow or the loose: Wish use will be made of this case by one of the other courts whose opinions are before you? Here you will call to your aid the matter of attitude that I have been discussing. Here you will use all that you know of individual judges, or trends in specific courts, or, indeed, of the trend in the line of business, or in the situation, or in the times at large – in anything which you may expect to become apparent and important to the court in later cases. But always, and always, you will bear in mind that each precedent had not one value, but two, and that the two are wide apart, and that whichever value a later court assigns to it, such assignment will be respectable, traditionally sound, dogmatically correct. Above all, as you turn this information to your own training you will, I hope, come to see that in most doubtful cases precedents must speak ambiguously until the court has made up its mind whether each one of them is welcome or unwelcome. And the job of persuasion which falls upon you will call, therefore, not only for providing a technical ladder to reach on authority the result that you contend for, but even more, if you are to have your use of the precedents made as you propose it, the job calls for you, on the facts, to persuade the court your cases is sound.
People – and they are curiously many – who think that precedent produces or ever did produce a certainty that did not involve matters of judgment and of persuasion, or who think that what I describe involves improper equivocation by the courts or departure from the court-ways of some golden age – such people simply do not know our system of precedent in which they live.
Editor’s note: Why does Llewellyn keep talking about the "facts the court assumes," rather than "the facts the court finds"?
…[A] most profound change … has been slowly and imperceptibly creeping into our treatment of problems in Anglo-American law, a fundamental change which merits careful study in order that we may recognize its presence, measure its extent, and judge its consequences. Let me anticipate my conclusions by asserting that we are well on our way toward a shift from following decisions to following so-called principles, from stare decisis to what I shall call stare dictis; by saying that this shift has far-reaching and unfortunate consequences for both the art of judicial government and the science of law, and by proposing a return toward the ancient doctrine of stare decisis.
Stare decisis analyzed. Support for this position will be found by examining that doctrine. It asserts not one thing, but two. For one thing, it asserts that prior decisions are to be followed, not disregarded. But it also asserts that we are to follow the prior decisions and not something else.
The First Meaning of the Doctrine. Most discussions of the doctrine of stare decisis have emphasized the first of these two assertions. In those we are told of the advantages and disadvantages of the doctrine. It has been pointed out how, on the one hand, it makes the law applicable to future transactions certain and the future decisions of judges predictable; and again, how it gives us justice according to law and not according to the whims of men. On the other hand, it has been shown that to follow it gives us a measure of inflexibility in our law, resisting changes needed to meet changing conditions. We are all familiar with these and other broad implications of this branch of the doctrine and have considered the necessary choice between conflicting advantages which its acceptance or rejection involves. The vigor of this branch of the ancient doctrine has been weakened but little. Something in the cases is being followed. This whole aspect of the matter is mentioned here only to be set aside.
The Second Meaning of the Doctrine. … There seems to have been little study of this phase of the doctrine, – of just what it is in prior decisions which is to be followed. General statements that the decision is to be looked for, that dicta are of slight weight and offer no certain guide can be turned to at many places in the books and are familiar to all. Students beginning their law study are told these things in a general way and then are left to an apprenticeship among the cases to discover largely for themselves their fuller meaning. Yet this matter is the one most vital and difficult factor conditioning the soundness of their scholarship. It is because the word decision may mean any one of many things that it is perilous to leave the matter thus unarticulated.
What Does the Case Decide? In the first place, a court, in deciding a case, may throw out a statement as to how it would decide some other case. Now if that statement is a statement of another case which is as narrow and specific as the actual case before the court, it is easily recognized as dictum and given its proper weight as such. In the second place the court may throw out a broader statement, covering a whole group of cases. … But so long as that statement does not cover the case before the court, it is readily recognized as being not a decision, much less the decision of the case. It is dictum, so labeled and appraised. But in the third place, a court may make a statement broad enough to dispose of the case in hand as well as to cover a few or many other states of fact. Statements of this sort may cover a number of fact situations ranging from one other to legion. Such a statement is sometimes called the decision of the case. Thereby the whole ambiguity of that word is introduced and the whole difficulty presented.
If a more careful usage limits the word decision to the action taken by the court in the specific case before it, i.e., to the naked judgment or order entered, the difficulty is not met; it is merely shifted. Stare decisis thus becomes useless for no decision in that limited sense can ever be followed. No identical case can arise. All other cases will differ in some circumstances – in time, if in no other, and most of them will have differences that are not trivial. Decision in the sense meant in stare decisis must, therefore, refer to a proposition of law covering a group of fact situations … as a minimum, the fact situation of the instant case and at least one other.
To bring together into one class even this minimum of two fact situations however similar they may be, always has required and always will requireb an abstraction. If Paul and Peter are to be thought of together at all, they must both be apostles or be thought of as having some other attribute in common. Classification is abstraction. An element or elements common to the two fact situations put into one class must be drawn out from each to become the content of the category and the subject of the proposition of law which is thus applied to the two cases.
But such a grouping may include multitudes of fact situations so long as a single attribute common to them all can be found. Between these two extremes lies a gradation of groups of fact situations each with its corresponding proposition of law, ranging from a grouping subtending but two situations to those covering hosts of them. This series of groupings of fact situations gives us a parallel series of corresponding propositions of law, each more and more generalized as we recede farther and farther from the instant statement of facts and include more and more fact situations in the successive groupings. It is a mounting and widening structure, each proposition including all that has gone before and becoming more general by embracing new states of fact. For example, A’s father induces her not to marry B as she promised to do. On a holding that the father is not liable to B for so doing, a gradation of widening propositions can be built, a very few of which are:
1. Fathers are privileged to induce daughters to break promises to marry.
2. Parents are so privileged.
3. Parents are privileged as to both daughters and sons.
4. All persons are so privileged as to promises to marry.
5. Parents are so privileged as to all promises made by their children.
6. All persons are so privileged as to all promises made by anyone.
There can be erected on the action taken by a court in any case such a gradation of generalizations and this is commonly done in the opinion. Sometimes it is built up to dizzy heights by the court itself and at times by law teachers and writers, it is reared to those lofty summits of the absolute and the infinite.
Where on that gradation of propositions are we to take our stand and say "This proposition is the decision of the case within the meaning of the doctrine of stare decisis?" Can a proposition of law of this third type ever become so broad that, as to any of the cases it would cover, it is mere dictum?
A Question of Double Difficulty. That would be difficult enough if it ended there. But just as one and the same apple can be thrown into any one of many groups of barrels according to its size, color, shape, etc., so also there stretches up and away from every single case in the books, not one possible gradation of widening generalizations, but many multitudes of radii shoot out from it, each pair enclosing one of an indefinite number of these gradations of broader and broader generalizations. For example, a contract for wages contains a stipulation that it shall be non-assignable by the employee. A court holds that the laborer can assign anyway and that his assignee can sue the employer for the wages regardless of the stipulation. This holding can serve as the apex of many triangles of generalizations. At the base of one will be a broad generalization treating the claim as property and asserting the alienability of property; at the base of another will be an equally broad generalization having to do with contractual stipulations opposed to public policy and the base of a third will be a similarly wide generalization concerning the liquidation of claims in the labor market. Others could be enumerated and other cases similarly analyzed. That is not needed, for we all know of at least one case appearing in the case books of more than one subject upon which securely rests more than one inverted pyramid of favorite theory.
A student is told to seek the "doctrine" or "principle" of a case, but which of its welter of stairs shall he ascend and how high up shall he go? Is there some one step on some one stair which is the decision of the case within the meaning of the mandate of stare decisis? That is the double difficulty. Each precedent considered by a judge and each case studied by a student rests at the center of a vast and empty stadium. The angle and distance from which that case is to be viewed involves the choice of a seat. Which shall be chosen? Neither judge nor student can escape the fact that he can and must choose. To realize how wide the possibilities and significant the consequences of that choice are is elementary to an understanding of stare decisis. To ask whether there exists a coercion of some logic to make that choice either inevitable or beneficent, searches the significance of stare decisis in judicial government and the soundness of scholarship in law. This question is real and insistent. It is one which should be asked explicitly and faced squarely. …
But there is a constant factor in the cases which is susceptible of sound and satisfying study. The predictable element in it all is what courts have done in response to the stimuli of the facts of the concrete cases before them. Not the judges’ opinions, but which way they decide cases will be the dominant subject matter of any truly scientific study of law. This is the field for scholarly work worthy of best talents because the work to be done is not the study of vague and shifting rationalizations but the study of such tough things as the accumulated wisdom of men taught by immediate experience in contemporary life, – the battered experience of judges among brutal facts. The response of their intuition of experience to the stimulus of human situations is the subject-matter having that constancy and objectivity necessary for truly scientific study. When we pin our attention to this, we may more freely criticize what courts have said but we shall more cautiously criticize what they have done realizing, as we shall, that they were exposed to the impact of more facts than we.
This surer thing for scholarly purpose is also the inner secret of what is soundest in the enfeebled stare decisis in judicial government of today. With eyes cleared of the old and broad abstractions which curtain our vision, we come to recognize more and more the eminent good sense in what courts are wont to do about disputes before them. Judges are men and men respond to human situations. When the facts stimulating them to the action taken are studied from a particular and current point of view, which our present classification prevents, we acquire a new faith in stare decisis. From this viewpoint we see that courts are dominantly coerced not by the essays of their predecessors but by a surer thing, – by an intuition of fitness of solution to the problem, – and a renewed confidence in judicial government is engendered. To state the matter more concretely, the decision of a particular case by a thoughtful scholar is to be preferred to that by a poorly trained judge but the decision of such a judge in a particular case is infinitely to be preferred to a decision of it preordained by some broad "principle" laid down by the scholar when this and a host of other cases had never even occurred to him.
One sampling of this proposed subject-matter of a real science of law must suffice. There are two lines of old cases involving the validity of promises not to compete. They are considered in square conflict. But when the opinions are ignored and the facts re-examined, all the cases holding the promise invalid are found to be cases of employees’ promises not to compete with their employers after a term of employment. Contemporary guild regulations not noticed in the opinions made their holdings eminently sound. All the cases holding the promises valid were cases of promises by those selling a business and promising not to compete with the purchasers. Contemporary economic reality made these holdings also eminently sound. The distinction between those two lines of cases is not even hinted at in any of the opinions but the courts’ intuition of experience led them to follow it with amazing sureness and the law resulting fitted life. That is a sample of the stuff capable of scientific study. …
1. To what if any extent is Oliphant’s essay in conflict with Llewellyn’s view?
Notes and Questions
1. For what purposes might a lawyer or law student want to know the "rule" of a case? Think of at least three. Would you expect the best possible statement of the "rule" of the case to be the same for each one? Are Llewellyn and Oliphant giving answers for different purposes?
2. Imagine a totally corrupt system of courts, in which the winning party in any lawsuit was the party who offered the judge the largest money bribe for decision. Imagine, in addition, that the judges nevertheless wrote opinions, just as judges do now, purporting to explain the results of the cases in terms or principles of law (making no reference to the bribes). What would Llewellyn view as the "holding" of a case in that system? Oliphant?
3. Professor Oliphant adverts, in his final paragraph, to cases involving the validity of promises not to compete. He asserts that the cases "are considered in square conflict," speaking of the principles stated in the opinions. He also asserts that in fact they stand, unanimously, for the proposition that an employer cannot enforce upon an employee a promise not to compete, but one who buys a business to another may enforce such a promise if the seller made it. How would Llewellyn view those cases?
4. What psychological assumptions are the authors making about the process by which judges reach their decisions? Are they warranted?