The Wisconsin Supreme Court overruled itself three times in the 2017-18 term.1 To address questions raised by this circumstance, this article discusses Wisconsin’s approach to stare decisis in principle and in practice. It begins with a brief history of stare decisis, followed by a review of the supreme court’s standards for adhering to stare decisis and for departing from it.
The article then presents a statistical review of the supreme court’s cases over the past decade. Among other things, it examines how frequently cases overrule precedent, the characteristics of those cases, and the justices’ individual patterns in those cases. The article concludes with commentary on the future of stare decisis with a dynamic and changing supreme court.
History of Stare Decisis
While stare decisis – Latin for “to stand by things decided” – has roots deep in the English common law, it appeared in its modern form only recently.2 Starting around the 12th century, royal courts placed increased emphasis on consistency in the law. Judges in this period, however, relied on past decisions as persuasive evidence of custom, not as binding authority. Indeed, past decisions “were studied for the soundness of their reasoning, not the authority of their holdings.”3
Joseph S. Diedrich, U.W. 2017 summa cum laude, Order of the Coif, is a litigation and appellate attorney at Husch Blackwell LLP in Madison. He also serves on the State Bar of Wisconsin’s Appellate Practice Section board.
Over the next several centuries, “English courts began to speak of a qualified obligation to abide by past decisions.”4 During the 18th and 19th centuries, as competing jurisdictions gave way to hierarchical appellate systems, and as reliable printed reporters became widely available, a more formal doctrine of stare decisis took hold. By Blackstone’s time, adherence to precedent was the “established rule.”5 Hamilton, Adams, and Madison in particular all agreed, explaining how “the judicial oath provides no basis for adoption of the judge’s individual understandings of a constitutional provision at the expense of precedent.”6
Stare decisis solidified into its modern, strict form in the mid- to late 1800s, ultimately transforming the nature of the common law and the functioning of courts. “By causing lawyers and judges to seek the rules of the common law in individual past decisions,” modern stare decisis – quite unlike the historical use of past decisions as evidence of custom – “changed the putative source of the common law from custom to the opinions of appellate judges.”7
The first mention of “stare decisis” in Wisconsin state case law came shortly after statehood in a dissenting opinion.8 A few years later, a majority affirmed the principle, declaring it to be the “motto of courts of justice.”9
General Principles in Wisconsin
The supreme court “follows the doctrine of stare decisis scrupulously” out of its “abiding respect for the rule of law.”10 Adhering to stare decisis promotes numerous societal values, including maintaining consistency and predictability in the law, providing clear guidelines for conduct, furthering fair adjudication, and upholding the integrity of the judiciary. “[I]n most matters,” the court has reasoned, “it is more important that the applicable rule of law be settled than that it be settled right.”11
Yet stare decisis is not an “inexorable command,” a “straightjacket,” or an “immutable rule.”12 It is rather a “principle of policy.”13 Although honoring precedent “normally protects the rule of law, sometimes [the court] do[es] more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.”14
To overrule a past decision, the supreme court requires a “special” or “compelling” justification.15 The court has identified five nonexclusive factors characteristic of a special justification:
Changes or developments in the law have undermined the rationale behind a decision.
There is a need to make a decision correspond to newly ascertained facts.
There is a showing that the precedent has become detrimental to coherence and consistency in the law.
The prior decision is unsound in principle.
The prior decision is unworkable in practice.16
By contrast, the supreme court does not overrule precedent solely because “a large majority of other jurisdictions … have reached opposing conclusions.” Nor does a mere change in court membership, by itself, support departing from stare decisis.17
Justices with varying ideological proclivities have often argued in dissent that the majority in a case overruled precedent “sub silentio,” that is, without expressly saying so.18 In the other direction, dissenters have criticized the majority for adhering to stare decisis when the dissenters would have overruled precedent.19
Wisconsin Court of Appeals
Stare decisis applies to decisions of the Wisconsin Court of Appeals, and that court’s published decisions “have statewide precedential effect.”20 Even the Wisconsin Supreme Court follows court of appeals precedent unless sufficient grounds exist to overrule it.21
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To ensure the court of appeals fulfills its constitutional and statutory mandate to function as a unitary court, only the supreme court can overrule prior court of appeals decisions. The court of appeals cannot overrule, modify, or withdraw language from its own case law.22 Nor can it disregard dicta in a supreme court opinion.23
When the supreme court overrules a court of appeals decision, that decision retains no precedential value unless the supreme court expressly states otherwise. In State v. Shata, for example, the court “withdr[e]w any language from Mendez” that stood for a particular proposition, leaving the “remainder of Mendez” intact.24
Statutory Interpretation Cases
The supreme court has stated that stare decisis is “paramount” for precedent authoritatively interpreting a statute, and overruling such precedent requires the statutory interpretation to be “objectively wrong.”25 Stare decisis in this context takes on “even greater significance” when the interpretation has stood for many years.26
Justice Rebecca Grassl Bradley and Justice Kelly, along with former Justice Gableman, have suggested that they disagree with the extra weight given to statutory-interpretation precedent. This rule is problematic, they have indicated, because it perpetuates poor statutory interpretation by basing decisions primarily on case law interpreting statutory text rather than on the statutory text itself. In Manitowoc Co. v. Lanning, for example, the majority interpreted Wisconsin’s restrictive-covenant statute according to prior case law.27 The three dissenters would have overruled the prior case law and interpreted the text of the statute anew.28
In another case in the 2017-18 term, Justice Rebecca Grassl Bradley dissented, arguing that the prior case strayed too far from statutory language and should be overruled. Notably, she also suggested that the court should be especially willing to reconsider a prior case when that case “criminalizes behavior that a person of ordinary intelligence would reasonably consider statutorily permissible.”29
Stare Decisis in Practice
As explained above, the supreme court has announced a commitment to stare decisis, as well as standards for departing from it. But in practice, what effect does stare decisis have on the court’s decision-making?
To examine that question, I analyzed cases decided by the supreme court over its past 10 terms, from the September 2008 term through the September 2017 term.30 During that period, the supreme court decided a total of 546 cases.31 It overruled or explicitly abrogated (collectively, “overrule” in this article) its own precedent 11 times, at a rate of 1.1 cases per term. (See Figure 1.)
Figure 1: Supreme Court Cases Overruled
Put differently, over the past 10 terms, the court overruled its own precedent in just over 2 percent of the cases it decided. This past term, that rate exceeded 5.08 percent. Next highest was the September 2012 term, when the court overruled a prior case in two of the 46 cases it decided, for a rate of 4.35 percent.
Of the 11 cases in which the court overruled its own precedent, seven were decided by a 5-2 vote. Six of those seven, notably, came in the last four terms (2014-17). Before that, two of the overruling cases were decided 7-0, one was decided 5-2, one 4-3, and one 4-2.
The age of the case being overruled varied widely,32 ranging from only one year to 78 years. The 78-year-old case was truly an outlier: while the average age was 21.55 years old, the median was merely 13 years old. (See Figure 2.)
Figure 2: Age of Overruled Precedent
Seven different justices authored opinions in the past decade’s overruling cases. Justice Gableman, Justice Prosser, and Justice Ziegler led the way, writing two apiece. Justice Ann Walsh Bradley, Justice Rebecca Grassl Bradley, Justice Crooks, and Justice Roggensack authored one opinion each. Justice Abrahamson and Justice Kelly wrote none, and there was no majority opinion in the 11th case.33 Of course, authorship itself may or may not be significant, given how the justices have limited control over when they write majority opinions.
A group of three justices – Gableman, Roggensack, and Ziegler – voted to overrule in each of the 11 overruling cases. While he was on the court, Justice Prosser also voted with that group seven times. Despite only recently joining the court, Justice Rebecca Grassl Bradley and Justice Kelly voted to depart from stare decisis five and four times, respectively. (See Figure 3.)
Figure 3: Cases Voting in Majority to Overrule
Over the past 10 terms, by contrast, Justice Abrahamson and Justice Ann Walsh Bradley each voted to overrule only twice – both times together, once in 2010 and once in 2013.34 In each of the court’s nine other overruling cases, Justice Abrahamson and Justice Ann Walsh Bradley expressly rejected the majority’s decision to overrule. On multiple occasions, these two justices have lamented, “What happened to precedent and stare decisis?”35
The 11 overruling cases of the past 10 terms varied widely in content, with some emergent patterns. Of the 11 cases, seven were criminal and four were civil. Cases involving issues of constitutional law predominated (5 of 11), followed by statutory-interpretation cases (4 of 11), and other common-law cases (2 of 11). The vast majority of the 11 cases concerned procedural questions, as opposed to substantive ones, although the distinction between procedure and substance was not always clear.
Finally, as mentioned, the Wisconsin Supreme Court is the only state court that can overrule Wisconsin Court of Appeals precedent. When one includes supreme court cases overruling court of appeals precedent (in addition to cases overruling its own precedent), the total number of overruling cases rises from 11 to 28. This amounts to 2.8 overruling cases per term, at a rate of 5.13 percent of all cases decided. (See Figure 4.)
Figure 4: Supreme Court and Court of Appeals Cases Overruled
Justice Rebecca Grassl Bradley, despite sitting on the supreme court for only three years, has authored five opinions overruling supreme court or court of appeals precedent – the most of any justice during her time on the court and tied for the most with Justice Ziegler over the past 10 terms. Of the other justices sitting through the entire 10-term period, Justice Abrahamson and Justice Roggensack authored two apiece, and Justice Ann Walsh Bradley and Justice Gableman each authored four.
The supreme court’s rate of overruling its own precedent (1.1 overruling cases per term over the past 10 terms) roughly coincides with the U.S. Supreme Court’s rate over a similar time period.36 During its 13-year existence, the Roberts Court has overruled precedent at a rate of one case per term. So despite its most recent term, it would strain credulity to say that the Wisconsin Supreme Court is careless with precedent.
Moreover, compared to its predecessors, the Roberts Court has been particularly faithful to stare decisis. The Rehnquist Court overruled at a rate of 2.16 cases per term. And the Burger and Warren Courts clipped along at 3.06 and 3 cases per term, respectively.
Over the past 10 terms, then, the Wisconsin Supreme Court most closely resembles the Roberts Court. But its September 2017 term calls to mind the Warren and Burger Courts – at least as far as stare decisis goes.
Like the Wisconsin Supreme Court, the U.S. Supreme Court also saw an uncharacteristic uptick in overruled cases this past term, with Janus v. AFSCME overruling Abood v. Detroit Board of Education, South Dakota v. Wayfair overruling Quill Corp. v. North Dakota, and Trump v. Hawaii explicitly abrogating the infamous Korematsu case.37 In its current term, the U.S. Supreme Court will hear at least three more cases in which the sole issue is whether to overrule prior case law.
Also like Wisconsin, the U.S. Supreme Court has overruled its own precedent most often in constitutional cases. Indeed, both courts consider stare decisis to be at its weakest in the constitutional arena, stronger in the statutory-interpretation context, and strongest in cases implicating reliance interests in property or contract rules.38 In both courts, too, stare decisis carries less weight in procedural cases than in substantive cases.39
Further Thoughts on a Dynamic Court
During the Wisconsin Supreme Court’s past 10 terms, the justices often labeled “conservative” voted to overrule precedent, whereas the justices often labeled “liberal” have not. Whatever weight one applies to those political labels, it is undeniable that certain justices – particularly Grassl Bradley, Gableman, Kelly, Prosser, Roggensack, and Ziegler – have voted as a coherent bloc to overrule cases. Likewise, Justice Abrahamson and Justice Ann Walsh Bradley have voted together typically to oppose overruling.
Using a somewhat different metric to review the case law, Professor Alan Ball has also observed this voting pattern over the past 10 terms. He adds, however, that the situation was the opposite before 2008, when the “liberal” justices, then a majority of the court, more frequently overruled cases.40
These observations raise an interesting question: Is stare decisis a matter of judicial philosophy? Or is it merely a convenient tool used to justify a favored outcome? Cynics will rush to conclude the latter. Stare decisis, after all, frequently has been criticized as “a mask hiding otherconsiderations,” and as mere matter of “convenience, to both conservativesand liberals,” whose “friends… are determined by the needs of themoment.”41
Ultimately, it is impossible to pin down how much any one justice’s approach to stare decisis is driven by judicial philosophy and how much is a function of that justice’s position in the majority or minority. While the data do suggest that the “needs of the moment” may influence a given justice’s – and the court’s – approach to stare decisis, there are no bright lines.
Like many things in the law, stare decisis is probably best thought of as a mix of principled philosophy and post hoc rationalization. After all, the supreme court’s standards for overruling precedent, which have remained the same despite ideological shifts in the court’s composition, are malleable on their face. This malleability suggests that all Wisconsin Supreme Court justices favor allowing stare decisis to bend in order to balance consistency and accuracy.
One may also wish to ask if strict stare decisis makes for good policy. Adhering to precedent over time has both benefits and drawbacks. On the one hand, it fosters predictability in rules of conduct and reduces the need to relitigate the same issues. On the other hand, it risks cementing inefficient legal rules, and it may also form a necessary precondition for rent-seeking behavior in the common-law rulemaking process.42 Although departure from stare decisis is often decried as “judicial activism,” one could also argue that strict stare decisis is itself a form of “judicial activism,” insofar as it allows the judicial branch to become a law-making body. At a minimum, these and similar issues are worth considering.
The composition of the Wisconsin Supreme Court has changed dramatically in recent years. In theory, a mere change in court membership does not support departing from stare decisis43 – but in practice it probably has that effect. Two of the newest justices (Grassl Bradley and Kelly) have shown openness to overruling precedent. Justice Rebecca Grassl Bradley in particular appears to view correction of erroneous case law as a valuable judicial exercise. To that end, she has at least once voted to overrule precedent when no one else joined – not even the other “conservative” justices.44
The court now welcomes Justice Rebecca Dallet, whose philosophy on stare decisis is essentially unknown. And at least one more change in membership will occur soon after Justice Abrahamson retires from the bench. How these changes will affect stare decisis in Wisconsin remains to be seen.
Appellate advocates should closely monitor changes in the supreme court’s stare decisis jurisprudence. Depending on the court’s composition and the substantive issues involved in a particular case, arguments for overruling precedent may prove more or less effective. Especially with knowledge of individual justices’ approaches to stare decisis, Wisconsin lawyers may be able to tip the scales in their favor.
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If you could get free tickets to any event, what would it be?
Free or not, I’d love to spectate at a U.S. Supreme Court Justices’ conference. Held twice per week while the Court is in session, Justices’ conferences are where the nation’s top jurists discuss and vote on cases.
While we can listen to oral arguments and read polished written opinions, the in-between largely remains a mystery. We don’t get to observe the Justices’ interactions with each other when it’s still early on in their decision-making process. To get a glimpse at this process would be revelatory – not only as an appellate advocate but simply as a person.
For better or worse, the only way to get a “ticket” to a Justices’ conference is by being a sitting Justice. Not even their law clerks attend, much less anyone else. For now, then, I’d settle for some free Packers tickets.
Joseph S. Diedrich, Husch Blackwell LLP, Madison.
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1 See Mayo v. Wisconsin Injured Patients & Families Comp. Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678; Tetra Tech EC Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21; State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773. Three members of the court also voted to overrule in a fourth case, State v. Mitchell, 2018 WI 84, 383 Wis. 2d 192, 914 N.W.2d 151.
2 A distinction is often made between “vertical” and “horizontal” stare decisis. Vertical stare decisis means that lower courts are bound to follow decisions of higher courts. Horizontal stare decisis concerns precedent over time, requiring courts to adhere to decisions made in similar past cases. This article primarily uses the term “stare decisis” in the horizontal sense, except where context requires otherwise.
3 Todd J. Zywicki, The Rise and Fall of Efficiency in theCommon Law: A Supply-Side Analysis, 97 Nw. U. L. Rev.1551, 1568 (2002); Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 664-65, 660 (1999).
4 Lee, supra note 3, at 661, 664-65.
5 1 William Blackstone, Commentaries *68-69; John Hasnas, Hayek, the Common Law, and Fluid Drive, 1 N.Y.U. J. L. & Liberty 79, 91 (2005); Zywicki, supra note 3, at 1581-82, 1631.
6 Lee, supra note 3, at 664-65, 711.
7 Hasnas, supra note 5, at 94.
8 In re Booth, 3 Wis. 1, 80 (1854), rev’d sub nom.Ableman v. Booth, 62 U.S. 506 (1858) (Crawford, J., dissenting).
9 Ableman v. Booth, 11 Wis. 498, 522 (1859) (quoting Theodore Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law).
10 State v. Luedtke, 2015 WI 42, ¶ 40, 362 Wis. 2d 1, 863 N.W.2d 592 (quoting Johnson Controls Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶ 94, 264 Wis. 2d 60, 665 N.W.2d 257).
11 Johnson Controls, 2003 WI 108, ¶¶ 95, 97, 264 Wis. 2d 60 (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)).
12 Id. ¶¶ 97, 100; State v. Denny, 2017 WI 17, ¶ 69, 373 Wis. 2d 390, 891 N.W.2d 144 (quoting Hohn v. United States, 524 U.S. 236, 251 (1998)).
13 Denny, 2017 WI 17, ¶ 69, 373 Wis. 2d 390 (quoting Hohn, 524 U.S. at 251).
14 Tetra Tech EC, 2018 WI 75, ¶ 83, 382 Wis. 2d 496 (opinion of Kelly, J.) (quoting Johnson Controls, 2003 WI 108, ¶¶ 97, 100, 264 Wis. 2d 60) (alteration in original).
15 Luedtke, 2015 WI 42, ¶ 40, 362 Wis. 2d 1 (quoting Schultz v. Natwick, 2002 WI 125, ¶ 37, 257 Wis. 2d 19, 653 N.W.2d 266) (“special”); Johnson Controls, 2003 WI 108, ¶ 93, 264 Wis. 2d 60 (“compelling”)).
16 Luedtke, 2015 WI 42, ¶ 40, 362 Wis. 2d 1 (quoting Bartholomew v. Wisconsin Patients Comp. Fund, 2006 WI 91, ¶ 33, 293 Wis. 2d 38, 717 N.W.2d 216); accord Johnson Controls, 2003 WI 108, ¶¶ 98–99, 264 Wis. 2d 60.
17 Johnson Controls, 2003 WI 108, ¶¶ 95, 100, 264 Wis. 2d 60.
18 E.g., State v. Ozuna, 2017 WI 64, ¶¶ 30, 50, 376 Wis. 2d 1, 898 N.W.2d 20 (A.W. Bradley, J., dissenting); Beidel v. Sideline Software Inc., 2013 WI 56, ¶ 74, 348 Wis. 2d 360, 842 N.W.2d 240 (Gableman, J., dissenting); accord State v. Brar, 2017 WI 73, ¶ 136, 376 Wis. 2d 685, 898 N.W.2d 499 (Abrahamson, J., dissenting).
19 E.g., State v. Grandberry, 2018 WI 29, 380 Wis. 2d 541, 910 N.W.2d 214 (R.G. Bradley, J., dissenting); Luedtke, 2015 WI 42, ¶ 95, 362 Wis. 2d 1 (Abrahamson, J., dissenting).
20 Wis. Stat. § 752.41(2) (2015-16); Cook v. Cook, 208 Wis. 2d 166, 186, 560 N.W.2d 246, 254 (1997).
21 AllEnergy Corp. v. Trempealeau Cty., 2017 WI 52, ¶ 55 n.20, 375 Wis. 2d 329, 895 N.W.2d 368.
22 Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶ 63, 350 Wis. 2d 554, 835 N.W.2d 160; Cook, 208 Wis. 2d at 189-90.
23 Zarder v. Humana Ins. Co., 2010 WI 35, ¶¶ 52-58, 324 Wis. 2d 325, 782 N.W.2d 682.
24 State v. Shata, 2015 WI 74, ¶ 78, 364 Wis. 2d 63, 868 N.W.2d 93; see Blum v. 1st Auto & Cas. Ins. Co., 2010 WI 78, ¶¶ 42, 56, 326 Wis. 2d 729, 786 N.W.2d 78.
25 State v. Breitzman, 2017 WI 100, ¶ 5 n.4, 378 Wis. 2d 431, 904 N.W.2d 93 (quoting Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶ 45, 281 Wis. 2d 300, 697 N.W.2d 417).
26 Id.¶ 5 n.4.
27 Manitowoc Co. v. Lanning, 2018 WI 6, 379 Wis. 2d 189, 906 N.W.2d 130; see Wis. Stat. § 103.456; Heyde Cos. v. Dove Healthcare LLC, 2002 WI 131, 258 Wis. 2d 28, 654 N.W.2d 830.
28 Manitowoc Co., 2018 WI 6, ¶¶ 78-81, 379 Wis. 2d 189 (R.G. Bradley, J., dissenting).
29 State v. Grandberry, 2018 WI 29, ¶ 86, 380 Wis. 2d 541, 910 N.W.2d 214 (R.G. Bradley, J., dissenting).
30 Data on file with author.
31 This number excludes orders pertaining to various motions, petitions, and disciplinary matters; cases dismissed as improvidently granted; and cases deadlocked at 3-3. Consolidated cases are counted as one.
32 When a case overruled multiple prior cases, I considered the age of only the most recent overruled case.
33 Tetra Tech EC, 2018 WI 75, 382 Wis. 2d 496.
34 Schinner v. Gundrum, 2013 WI 71, 349 Wis. 2d 529, 833 N.W.2d 685; Leavitt v. Beverly Enters. Inc., 2010 WI 71, 326 Wis. 2d 421, 784 N.W.2d 683.
35 E.g., State v. Houghton, 2015 WI 79, ¶ 83, 364 Wis. 2d 234, 868 N.W.2d 143 (Abrahamson, J., dissenting); Phelps v. Physicians Ins. Co. of Wis., 2009 WI 74, ¶ 74, 319 Wis. 2d 1, 768 N.W.2d 615 (A.W. Bradley, J., dissenting).
36 See Jonathan H. Adler, The Stare Decisis Court?, The Volokh Conspiracy (July 8, 2018).
37 Janus v. AFSCME, 138 S. Ct. 2448 (2018), and Abood v. Detroit Board of Education, 431 U.S. 209 (1977); South Dakota v. Wayfair Inc., 138 S. Ct. 2080 (2018), and Quill Corp. v. North Dakota, 502 U.S. 808 (1991); and Trump v. Hawaii, 138 S. Ct. 2892 (2018), and Korematsu v. United States, 323 U.S. 214 (1944).
38 See Kimble v. Marvel Entm’t LLC, 135 S. Ct. 2401, 2409 (2015); Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013); Payne v. Tennessee, 501 U.S. 808, 828 (1991); Breitzman, 2017 WI 100, ¶ 5 n.4, 378 Wis. 2d 431 (quoting Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶ 45, 281 Wis. 2d 300, 697 N.W.2d 417); Lee, supra note 3, at 687-88, 699, 703-04.
39 Alleyne, 570 U.S. at 116 n.5; United States v. Gaudin, 515 U.S. 506, 521(1995); Payne, 501 U.S. at 828.
40 Alan Ball, Is Stare Decisis Dead?, SCOWstats, Mar. 28, 2017.
41 Lee, supra note 3, at 648 (quoting Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 743 (1988); Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cornell L. Rev. 401, 402 (1988)).
42 Zywicki, supra note 3, at 1568.
43 Johnson Controls, 2003 WI 108, ¶ 95, 264 Wis. 2d 60.
44 Grandberry, 2018 WI 29, 380 Wis. 2d 541 (R.G. Bradley, J., dissenting).