The follow-the-law constraint on her experienced freedom of decision is clearest if we place our judge, for a little while, on an intermediate appellate court. Suppose she is hearing an appeal from a contested legal ruling made by a trial judge, in a dispute governed by her state's common law. To say the dispute is governed by the state's common law is to say it is one to which no enacted constitutional provision or state statute (or city or town ordinance, or administrative regulation) decisively applies, and for which the decisive legal rules and standards must therefore be gathered from the collection of prior decisions by courts of the state in common law cases. Let us call this collection of judicial precedents the common law base. In a common law case, a first-level or trial court has to draw from the common law base, by some mode of reasoning, the legal rules and standards that it combines with its factual findings in order to decide the case before it. The job of an appellate court is (when called upon to do so by a party to litigation) to check the correctness of a trial court's distillation of applicable rules and standards from the common law base. If the tribunal is an intermediate appellate court (not the highest court of the state), its task is thought by most lawyers to be additionally constrained in the following way: An intermediate appellate court is not expected to use, as its test for the legal correctness of a "lower" court's rulings, its own independent best judgment of the meaning for the case at hand of what is found in the common law base. Rather, an intermediate court is expected to act in this matter as the faithful agent of the state's highest court, by treating as gospel truth all prior pronouncements by the highest court on any and all comparable or related questions of common law meaning.

For example, in Prah v. Maretti,⁽⁷⁾ the question was whether a landowner building on his own land runs any risk of liability to a neighbor for harm caused by stopping sunlight from reaching the neighbor's solar collector. Somewhat controversially and by a divided vote, the Supreme Court of Wisconsin (that state's highest court) concluded from its reading of that state's common law base that the builder does run the risk of liability in such a case (in the event that his building activity is later found a by a court to have been "unreasonable" in the circumstances). Suppose every single judge of a certain intermediate appellate court in Wisconsin honestly believes that this was a mistaken and indeed irresponsible reading of the common law base -- a willful departure, for no good legal reason, from the plain meaning and implication of the legal materials as they existed just prior to the Supreme Court's decision. The strongly prevailing view is that these judges are nevertheless required by their office -- their subordinate position in the judicial hierarchy -- to treat the higher court's decision on this point, along with its supportive reasoning, as binding on them in any comparable or related case which may thereafter come before them.⁽⁸⁾ Our intermediate appellate judge is well aware of this expectation about the manner in which she will conduct her office. Call it the expectation of judicial deference to legal authority. She does not question this expectation's moral or political legitimacy. And she is always worried, remember, about doing the right or the suitable thing.

Now suppose you are the lawyer representing a party to an appeal to this judge's court, a plaintiff who lost his case at the trial level. The facts upon which the court will decide the appeal are narrated in the plaintiff's complaint, and are uncontested by any counter-allegations or counter-testimony on behalf of the defendants. Here they are, in brief, drawn fairly closely from an actual case, that of Moore v. Regents of the University of California.⁽⁹⁾ (You can see a full report of all the opinions in the Moore case at any time by clicking on "Moore". Right now -- even on your first time through this text -- you might want to glance at the statement of facts in Justice Panelli's opinion for the court.

The plaintiff. John Moore, is a recent medical patient, someone whose cancerous spleen was removed by and on the advice of Dr. Golde, who failed at the time to tell Moore that he, the doctor, planned to use the removed spleen, along with other tissues taken from the patient's body in the course of treatment, as raw material for scientifically important medical research that could result in a commercially valuable product as well as great social benefit. Moore, claiming that Dr. Golde violated his legal rights as a medical patient by not telling him about the doctor's intended use of the spleen and other tissues, has sued to recover the costs of the surgery from the doctor. Moore has raised no question about the medical content of the doctor's advice, which we can assume was fully in accord with all the relevant medical protocols, nor has Moore questioned that the actual consequences of the surgery for his health have been as positive as could reasonably have been hoped. The allegations in Moore's complaint comprise the only factual material in the case. The trial judge ruled that, taking the story as the complaint tells it, the doctor had not infringed on any legal right of the plaintiff's. The judge you are addressing is hearing your client's appeal from this adverse ruling, and she waits to hear your reasons why reversing it is what it is that she as a judge has best reason now to do about it, aware and respectful as she is of the expectation of judicial deference to legal authority. You are called upon, it seems, for a normative argument that is also a legal argument.