JurisdictionUnited States,Federal,Vermont
CitationVol. 42 No. 1 Pg. 8
Publication year2016
No. Vol. 42 No. 1 Pg. 8
Vermont Bar Journal
Spring, 2016

Never Mind What We Said Before: A Look at Overruling

Paul S. Gillies, Esq., J.

The law is a complex engine, with an operating manual written by committee over the course of hundreds of years. No one understands precisely how it all works. What we know of it comes from reading and comparing cases. The published canon of Vermont jurisprudence is the Vermont Reports, all nearly two hundred volumes (and eight earlier volumes). That is the gospel of Vermont equity and the common law, thousands of pages of dicta, recitation of facts, and the heart of each case, consisting usually of a sentence or two of general statements or propositions, which are then applied to the facts and a judgment reversed, modified, or affirmed.

Those statements, first written and then cited and quoted in subsequent cases, are the law, as much as any statute or rule. They are precedent, and precedent is powerful. It drops down on you from the past and favors you if you followed it and punishes you if you didn't. Precedent also makes the job of deciding cases much easier, because a judge doesn't have to decide anything. It's already been decided before, by another court looking at similar facts. All the judge needs to do is hold up the precedent to the light of the facts, and the decision is predetermined.

Law changes, as it must if our society is to move forward. Ideally, such changes come with some notice, through a legislative process, and apply prospectively to the affairs of people.[1] Statutes and rules are amended, and life goes on under a new regime. Occasionally, however, the law changes when a court overrules its prior decisions, and these changes sometimes come without notice, applying retrospectively to the case under appeal and prospectively for future cases, at least until the rule is changed again by a subsequent decision.

Unlike a dissent, where one or two justices express their disapprobation of the ruling of the majority, overrulings represent the entire court changing its mind. Most overrulings are unanimous.

Overruled cases reveal the evolution of legal ideas. Sometimes the legislature has amended the law, making an earlier precedent no longer valid, which is recognized by the court.[2] Sometimes the federal courts or Congress make a decision that preempts or redirects the Vermont Supreme Court to a new rule. But the most revealing cases are those where the highest court in Vermont, infallible because it is final, discovers the law isn't what it once was believed to be, and reverses itself.


Overrulings are landmarks of the law. They represent mid-course corrections, where the Court frees itself from the shackles of stare decisis (standing by decided matters) and heads in a new direction, putting the past behind it. The Supreme Court reverses lower courts all the time. When the Court looks back at what it has done in setting the course of the law on a particular subject and decides that way is a mistake, it defines itself, as it directs people in new ways of thinking.

There are at least seventy-two Vermont Supreme Court decisions explicitly acknowledging the overruling of earlier cases.[3] Twenty of these relate to the criminal law, but a majority (forty-four) alter the procedures of the common law, several on property law or the constitution or federal preemption. The most overrulings are found in the period of 1850-1870, 1977-1992, 1989-1997, and 2006 to the present. There were only nineteen expressed overruling cases before 1870. The number of cases overruled by these decisions may exceed one hundred, as many cases announcing the overruling of one particular prior decision take out an entire line of other decisions that relied on the earlier precedent. If you type "Supreme Court" into the Westlaw search engine for the Vermont collection, you get an even 20,000 hits. This may be a poor way of measuring the total number of decisions issued by the Vermont Supreme Court and published in official or unofficial volumes, but by comparison sventy-two reversals is a very small percentage. The numbers are misleading. The Supreme Court does not always explain when it is overruling earlier cases, either unintentionally, as when the court is unaware that an earlier case states a different proposition (a phenomenon less likely to occur in the era of modern search engines), or intentionally.[4] In his dissent in State v. Wheeler (2011), Justice John Dooley wrote.

The majority correctly acknowledges that the standard-of-review issue in this case conceals "layers of complexity" previously unexamined by this Court. Ante, ¶ 8. I am pleased that we are finally acknowledging that in State v. Sprague, 2003 VT 20, 24, 175 Vt. 123, 824 A.2d 539, State v. Stevens, 2004 VT 23, 10, 176 Vt. 613, 848 A.2d 330 (mem.), and State v. Sole, 2009 VT 24, 23, 185 Vt. 504, 974 A.2d 587, we have overruled decades of standard-of-review jurisprudence with no recognition that we have done so and no analysis of the relative merit of our action. Unlike the majority, however, I would rule that our recent change of direction is wrong and misguided and return to the deferential standard of review that has served us well.[5]

Why so few at first? Perhaps earlier courts were too respectful of precedent, and allowed contrary rulings to stand, in the hope that Vermonters would see that the rule had changed, without the court having to go through the chore of voiding one of its own decisions, or perhaps it was because there were so few cases to look back on and rethink. When the law is new, you would expect there would be many corrections, but the Vermont Court, in the earliest overruling cases, showed great reluctance to overrule. Most overrulings happen this way. A party presents a case as precedent and claims victory. The Court balks, knowing the result reached in the precedent is wrong, or perhaps realizing that as the precedent as applied to the present case it just doesn't make sense. The Court looks harder at the law and discovers the "precedent" is an anomaly, that some other case or cases in the canon state the true rule of law. The bad case is overruled and declared apochryphal—censored, sent out from the temple in disgrace, no longer precedent.

Refusing to overturn State v. Perrillo (1994), which held that when "offensive touching occurred continuously without any intervening act over a short period of time the State could not charge defendant with multiple counts of lewd and lascivious conduct," Justice Denise Johnson in State v. Carrolton (2011) explained that in addressing longstanding precedents, it is "not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community's ever-evolving circumstances and experiences."[6]

Blackstone says an overruled case is not bad law, but not law at all. The law is the perfection of reason, and what is not reason is not law.[7] Courts overrule themselves only when the reason of the rule cannot be discerned. This is a presumption founded on the belief that "we owe such deference to former times as not to suppose that they acted wholly without consideration."[8] But how can we tell that a former rule has lost its vitality?

Particularly in the criminal law, an overruling often follows changes wrought by federal courts. In other instances, better reasoned decisions from other states motivate the Court to overturn leading Vermont cases. Restatements carry great weight, as do articles in A.L.R. that demonstrate how out-of-sync Vermont law is from that of a majority of jurisdictions.[9] After the Yale Law Journal heavily criticized a Vermont case about respondeat superior, pointing out how the Vermont court mistakenly cited cases as precedent from other states that stood for the opposite conclusion, the Vermont court overruled it at the next opportunity, stating:

When one asks the broad, ultimate question, what does the old rule contribute to the administration of justice which justifies its retention, no good reason is apparent. On the other hand, its disadvantages have been pointed out in every quarter. Aside from— and in addition to—the matter of saving time and expense, common sense and common justice seem to point to but one answer ... In the face of this, we cannot bring ourselves to accord final confirmation to a doctrine which was outmoded at the time of its acceptance and which experience has shown is increasingly ill-adapted to the needs of modern practice.[10]

Saying the old rule just doesn't apply any longer is bold, given the reluctance of former courts to overrule precedent unless Vermont cases are inconsistent. There was more resistance before the twentieth century to change, more willingness to celebrate the idiosyncrasies of Vermont law and less interest in changing to fit with other states. Judge Russell Taft was an isolationist in that respect. Frank Fish, biographer of the bench and bar, wrote of him,

He was hindered rather than helped by precedents, unless they were of Vermont origin or hoary with antiquity. The precedents of other States were not authority here, he said, and were like Swiss troops fighting on both sides. The English cases and those that appeared in text books and had stood the ravages of time were treated with favor.[11]

This is further proof that Vermont jurisprudence is not a closed system. The common law is growing less indigenous with each such overruling.

Justice Robert Jackson said, "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."[12] In State v. Begins (1981), Justice Peck explained that while the court has great respect for the doctrine of stare decisis and the legislature's acquiescence to judicial interpretation of statutes, "neither can be...

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