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 allowed to prevail when it is determined , as it is today , that an earlier decision is simply wrong .” 13 That earlier decision is not always some old anomaly from the earliest volumes of reported cases . In some instances , the court undoes a rule of law it confirmed a year or two previously .
It is distasteful to overrule oneself . We don ’ t like it when we have to reverse important decisions in our own lives , but the need to jettison some principle that no longer makes sense occasionally seems inevitable . Still , we ’ d rather distinguish differences than admit them . Our Court has done a good deal of that over the years . In other cases it threatens an overruling long before it actually occurs . 14 Sometimes the Court places the language overruling an earlier case in a footnote , as if to distance itself further from the offensive act of overruling . 15 It should be difficult to overturn established precedent . The Court should be reluctant to throw out what ’ s come before without very good reason , if only for reasons of dependability in the law . The ability to predict outcomes is why we have a system of reported decisions in the first place . People need to know how to act . Respect for what has come before is a traditional virtue , one not always honored in a progressive society in times of change . Everything is always on the table at the statehouse . For tradition and stability , we look to the judiciary as the more conservative branch . The Court is bound by statute as well as the Constitution , and its own precedents . The legislature is bound only by the Constitution .
The law must change , of course . It must grow and elaborate , and sometimes shift direction . The court is not reluctant to overrule , but there is no evidence it is impulsive . Some of its critics maintain it has an agenda for social change , but the overruling cases don ’ t show that . There are “ liberalizing ” tendencies , but they usually reflect the changing values of our culture as established in legislation or by federal or other state courts . Law gets old , and is retired , from time to time . It ’ s a natural process .
The Major Overrulings
The first reported overruling decision is Field , Gates & Co . v . Sawyer ( 1818 ), which overruled earlier uncited cases . Book ac-
Ruminations www . vtbar . org THE VERMONT BAR JOURNAL • SPRING 2016 9