State v. Stevens: Reaffirming Blum on No Precedential Value of Overruled Court of Appeals Cases – With a Caveat

Precedent and authority are concepts with which students become familiar early in law school and grow to appreciate even more in practice. Law students learn to look to details such as jurisdiction, court hierarchy, status of a decision as published or unpublished, dates of decisions, and subsequent treatment and build on these foundations to evaluate precedential value and weight of authority. Students and legal researchers in Wisconsin had to rethink some of what had been considered established principles regarding precedent after the Wisconsin Supreme Court announced in Blum that court of appeals decisions that it overruled retained no precedential value absent an express statement that portions of a decision were left intact. Today, the court in State v. Stevens reaffirmed the holding in Blum, but did so with the caveat that courts may have to determine whether an opinion was really intended to overrule all of a decision or only a portion thereof when applying the rule retroactively.

In Blum v. 1st Auto Casualty & Insurance Co., 2010 WI 78, 326 Wis. 2d 729, 786 N.W.2d 78, a decision issued two years ago tomorrow, the Wisconsin Supreme Court held “that when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.”¶ 42. The court discussed several public policy and practical considerations that it deemed would be served by this “bright-line rule nullifying the precedential value of an overruled court of appeals decision.” ¶ 51. The court viewed the rule as one that would help eliminate confusion that had grown regarding precedential value of reversed and overruled opinions and that “clarifies the law for the public as a whole.” ¶ 55.

Continue ReadingState v. Stevens: Reaffirming Blum on No Precedential Value of Overruled Court of Appeals Cases – With a Caveat

Money and the Recall

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.

Paul complains of the “8 to 1” spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court’s decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the “8 to 1” figure.

As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn’t reflect the situation on the ground. 

Continue ReadingMoney and the Recall

Tearing Down Fences

G.K. Chesterton, the English essayist and Catholic thinker, said the following:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.”

To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

G.K. Chesterton, “The Drift From Domesticity,” in THE THING (1929).

It is long past time to stop tearing down fences in Wisconsin.

Continue ReadingTearing Down Fences