Distinguishing Precedent & Mapping Legal Terrain
The United States has a legal system based on stare decisis. Stare decisis is the concept that cases should follow applicable precedent—legally similar cases that a court decided before the case at hand and must follow. Legal relevance follows from factual similarity.
Latin for “what comes before,” stare decisis not only suggests but requires that courts decide cases and interpret laws—whether common law or statutory law in codes—by following precedent. Appellate courts reverse course on precedent all the time (and often need to justify doing so), which is the luxury of being an appellate court like the U.S. Supreme Court. But lower courts (supposedly) do not have this authority—if the precedent is mandatory authority and legally relevant, it is binding—the lower court must follow the precedent. What comes before determines what follows—precedent dictates decisions, and decisions follow precedent.
As a result, what lawyers are often doing in litigation is convincing the court whether a a precedent applies or which precedent applies.
Often there are plenty of precedential candidates available—other times, precedent is scarce. Sometimes, there is one case—perhaps that of a higher appellate court—that looms over the entire case and is hard to escape. In some situations, no precedent applies or exists yet—these are cases of first impression. In cases of first impression, the court will exercise its own judgment, perhaps by relying on other legal sources or persuasive (non-mandatory) authority.
When there is precedent in an attorney’s favor, he or she wants the court to follow that precedent. When there is unfavorable precedent, he or she wants the court to ignore or deviate from that precedent.
How does an attorney do this? Attorneys argue for courts to adopt favorable precedent by analogizing the instant case (the case at hand) to the favorable precedent. The attorney tells the court, “The instant case is just like that case,” maybe even “exactly like that case.” Of course, the attorney supports this assertion with factual information: “Like my favorable precedent, this case also has Fact North, Fact Up, Fact Red. Therefore, the court should follow the precedent and rule in my client’s favor.”
Meanwhile, opposing counsel is going to do the same thing in the opposite direction, looking for favorable precedent that would dictate an outcome in their favor. Notably, attorneys are also ethically required to disclose unfavorable applicable precedent. (In California, Rule of Professional Conduct 3.3(a)(2))
The counter to opposing counsel’s precedent is to distinguish the instant case from their precedent. The attorney argues, “The instant case is unlike that case,” maybe even “nothing like that case.” “Unlike opposing counsel's precedent, your honor, in this case Fact North is South, Fact Up is Down, and Fact Red is Blue. Therefore opposing counsel’s precedent does not apply.”
As a result, one of the key skills in legal argument is to analogize favorable precedent to your case and distinguish unfavorable precedent from your case. If the court concludes that your favorable precedent is the applicable precedent, your client will prevail.
The Law as a Map
To illustrate the idea of analogizing and distinguishing precedent, let’s conceptualize legal cases as existing on terrain—as territory on a map.
Attorneys want to convince the court that the instant case is within the boundaries of favorable precedent, and outside the borders unfavorable precedent. We want to convince the court that we are smack dab in the middle of favorable territory, and also so far away, so not-even-close to unfavorable territory, that the court can ignore it altogether. We want to be as squarely in the heart of the Kingdom of Favorable Precedent as possible, and as far away from the Realm of Unfavorable Precedent as possible.
If you think of the law as a map, your job is to show the court where the case is on the topography of the law, as illustrated in the picture below. (Fellow nerds out there may recognize this map—thanks to this Reddit user for adapting the Lord of the Rings map without labels.)
Of course, this illustration is a simplification of the act of arguing precedent, as all illustrations are. Most maps only clearly evince two dimensions (north-south and east-west). Topographical maps also convey elevation, and most maps also convey much more information than longitude and latitude (borders; whether something is water, a city, a capital, a mountain, or something else; the name of a feature),—but spatially maps primarily operate in two dimensions. Maps are also often flawed for purely spatial ends—a map of Europe won't do much good to help you find your train stain on the London Underground.
So a geographical map is inherently incomplete for definitively demonstrating abstract things that exist in more than two dimensions or have too few distinct quantitative attributes: things like law, logic, or rhetorical argument. So the “law as a map” illustration is an incomplete approximation—although I argue a very helpful one.
If we think about the law-map illustration within the IREAC paradigm, your I (issue) description tells the court which map the case needs; the R (rule) draws the borders on the map; the E (explanation) adds the features within those borders, the A (analysis) places the instant case on the map using the facts in the case—this shows the court where we are now. The C (conclusion or contention) demands action from the court based on the legal location. If the instant case is in Favorable Precedent, then the court must rule in your favor and reach a desirable conclusion.
This is what you as an attorney must demonstrate to the court—don't merely tell the court what it should do, use effective argument to show the court what it must do.
Often, the situation will be straightforward. Seldom is every element of a case in question—you may be squarely within a specific set of rules, and you won’t need to draw the court the entire map but merely argue about how close you are to Favorable Precedent versus Unfavorable Precedent. Other times, the key between winning and losing a case may rest on your ability to skillfully map the legal landscape for the court, show the court that the case is situated squarely in Favorable Precedent, and convince the court that the case is distinguishable from negative precedent.
Example Using Student Free Speech
Let’s use a student free speech case as an example of mapping legal terrain and comparing to precedent. Where are we in the world of the law? Well, the case is not about gerrymandering or custodial interrogation or equal protection—so we won’t be in those faraway lands. We’re in First Amendment country. More specifically, we’re in the Fiefdom of Student Speech cases. Citizens United and N.Y. Times v. Sullivan may be instructive in some sense, but not really—our case will not turn on rules from or interpretations of those cases, because we’re in School Speechdom.
The overarching rule governing free speech rights of students springs from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1968).
In 1965, John and Mary Beth Tinker (along with two younger siblings) wore black armbands with a peace symbol to school to protest the Vietnam War. District principals instituted a policy against armbands and suspended John and Mary Beth, along with a classmate. The students and their families challenged the actions of the school in federal court, arguing that they were an unconstitutional violation of the student's First Amendment free speech rights.
We want to convince the court that we are smack dab in the middle of favorable territory, and also so far away, so not-even-close to unfavorable territory, that the court can ignore it altogether.
The Supreme Court ruled in favor of the family. Vitally, the Supreme Court followed prior precedent in finding that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The court found that schools could only restrict speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Court held “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. … They wore [the armbands] to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. ... In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.”
While keeping Tinker’s rule and holding in place, the Supreme Court has carved out the following exceptions to the general prohibition against speech restrictions absent material disruption or substantial order. Schools can restrict these forms of speech without passing the Tinker test.
- Lewd, sexually offensive, vulgar, or offensive speech. In Bethel School District v. Fraser, the Supreme Court allowed the school to suspend Fraser for a speech rife with sexual metaphors nominating a fellow student for school office.
- Speech bearing the imprimatur of the school when the school demonstrates a legitimate pedagogical concern. In Hazelwood School District v. Kuhlmeier, the Supreme Court allowed the principal to remove two articles from the school newspaper regarding students’ experiences with pregnancy and parental divorce.
- Speech promoting illegal drug use. In Morse v. Frederick, the Supreme Court allowed Principal Morse to suspend Frederick for displaying a banner reading “BONG HiTS 4 JESUS” that was visible from the school during a school-sanctioned event as the Olympic torch passed through Juneau, Alaska. While a narrow holding, Justice Roberts' opinion provided substantial suggesting that courts should grant broad discretion to school principals to protect students.
Let’s say we have a student speech case of our own. Is it in First Amendment Land? Will the First Amendment prevent the state action? If you represent the student, you want to convince the court that the case is in Tinker Land—this case is so close to Tinker, it’s actually right in the middle of Tinker land. This does not guarantee that you’ll earn a ruling in your favor—but you have a good chance because the rule in Tinker sets a high bar for the school to satisfy, and the court ruled in favor of the students in Tinker despite some facts in favor of the school.
If you represent the school, you want to convince the court that your case is nowhere near Tinker: We’re so far away from Tinker, that the rule from Tinker doesn’t apply, the First Amendment does not bar the action, and the school can act to restrict the speech, either by suspending the student or instituting a policy banning such speech.
Let’s look at these example cases from U.S. circuit courts of appeal where one side prevailed by successfully analogizing to or distinguishing from past precedent.
"If you think of the law as a map, your job is to show the court where the case is on the topography of the law.
- Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992)—In the midst of a teachers strike, two students wore buttons reading “Scabs” with a line drawn through (implying they did not want strike-breaking replacement teachers) and stickers saying, “Scab we will never forget.” A vice principal asked Chandler to remove the buttons and stickers. Finding it “arguably political speech,” the Ninth Circuit concluded that “the district court erred in holding, without more, that the ‘scab’ buttons were inherently disruptive.” This is in a sense a classic Tinker case in which the students successfully distinguished their case from Fraser and Kuhlmeier without too much trouble.
- Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007)—A sophomore student (E.P.) maintained a notebook diary describing the creation of a pseudo-Nazi group, detailing several race- or sexual orientation-related acts of violence, and planning an allegedly fictitious coordinated shooting in the style of Columbine. An assistant principal suspended E.P. and recommended that the school reassign him to an alternate education program. While the court could have decided this case on Tinker rationale alone, the Fifth Circuit also relied on the rationale in Morse, including Justice Alito’s concurrence, to hold that the school could punish the speech “because such speech poses a direct threat to the physical safety of the school population.” The school successfully analogized the case to Morse in a way other school defendants may strategically emulate.
- R.O. v. Ithaca School District, 645 F.3d 533 (2nd Cir. 2011)—A student (R.O.) challenged a faculty advisor’s refusal to print a cartoon depicting a “Health 101” class in which a blackboard displayed “eight drawings of stick figures in various sexual positions.” The court held that the school “complied with the standards for regulation of speech in public schools set forth in [Fraser], which permits schools wide discretion to prohibit speech that is ‘lewd, indecent, or offensive,’ and [Kuhlmeier], which permits schools to censor school-sponsored speech in ways ‘reasonably related to legitimate pedagogical concerns.’” This is an excellent example of a school successfully (and relatively easily) analogizing a case to Fraser and Kuhlmeier to escape the high-bar rule in Tinker. Hence, R.O. lands in the overlap of territory between Fraser and Kuhlmeier.
- B.H. v. Easton School District, 725 F. 3d 293 (3rd Cir. 2013)—Some middle school students purchased bracelets reading, “I ♥ Boobies!” sold by a breast cancer educational foundation. After the students wore the bracelets for some time, the school banned bracelets displaying the word “boobies” and subsequently suspended two students (B.H. and K.M.) for refusing to remove them. The court concluded that “neither Fraser nor Tinker can sustain the bracelet ban.” Despite some interesting reasoning, the court found that the bracelets were “not plainly lewd” and the school could not categorically ban them under Fraser, and that the school did not demonstrate that the bracelets posed a threat of substantial disruption. While it’s open to interpretation, I find this to be a successful differentiation from Fraser and an application of the Tinker rule (as opposed to an application of the Fraser rule in which the student prevailed).
The differentiation of Ponce and B.H. above from unfavorable precedent is the act of distinguishing—showing the court that a case is dissimilar from another case, and demonstrating that the instant case is distant factually, spatially (in our illustration), and legally from the unfavorable precedent. The opposite of distinguishing is analogizing—favorably comparing precedent to the instant case by demonstrating similarity.