Court opinions have a complex structure. Some parts are easier to identify than others. There is very little difficulty in identifying the name of the parties, attorneys, or the judge that wrote the opinion of the court. It is equally easy to locate the statement summarizing the procedural posture of the case. It is a bit more difficult perhaps to gather all the facts but the distinction between law and facts it becomes clearer with experience. On the other hand, it is often difficult to distinguish the holding of an opinion from its reasoning.

The reason judges give for the holding is also part of what is known as “dicta.” Only the holding is binding. But how does one know what the holding is? How can one formulate the rule of law established by each case?

The job of stating a reasonable rule of law—of predicting the decision of the court on the new facts—is not easy; it is an art rather than a science and as such is primarily a matter of feel [...] The key to the determination is policy. What was the policy (or policies) underlying the earlier decisions? Are there facts in the
new case that raise different policy considerations? Of course, if the court believes the policy of the original decision was wrong, it may overrule it or [ ... ] “confine it to its special facts.”

Even if stare decisis is a myth like any myth it has its attraction. We, the people, need it in order to function as a specific type of democracy. Judges need it in order to legitimize their decisions. For example, Justices O’Connor, Kennedy, and Souter make a magisterial use of this myth in Planned Parenthood of
Southeastern Pennsylvania v. Casey, which they present as following the rule of stare decisis and retaining the “essential holding of Roe v. Wade.” But how can one destroy the holding of an earlier case and assert its guiding role simultaneously?

Justices did so with what some call “the painfully obvious sophistry,” which will enable one to distinguish the holding or the decision of the case from the dicta of the case, and point out to something called “precedent” of a much limited scope.

Briefly, applying the principle of stare decisis is a gray zone exercise where no one knows what the court will do until it decides, and only then, in hindsight, can one make the argument of stare decisis.

The earlier mentioned New York nuisance case, Boomer v. Atlantic Cement Co, is a clear example of how a holding will never become the law of the land in the abstract. The court in Boomer v. Atlantic Cement Co.refused to close the defendant's cement factory just because that was the law of the land. The New York Court of Appeals, the highest court in New York State refused to grant the injunction the neighbor sought. Instead, it recognized that the pollution minimized the neighbor’s enjoyment, which the court translated into damages. For the plaintiff’s loss of property rights, the court ordered defendant to pay a specific amount of money. Under the current circumstances, the Court found damages a more equitable solution than awarding an injunction closing the defendant's plant.

The highest court of the land spoke in this area of law, but the Boomer Court refused to apply its own precedent. Instead it chose to acknowledge the obvious, that stare decisis is only a guiding principle for judges.

Courts shy away from making such bold statements, because stare decisis gives us a sense of stability and order that we cherish and use. The Court did not find opposite “sayings of learned text-writers” more persuasive either. Instead, the Boomer Court found the present factual circumstances closer to a “persuasive” case from another jurisdiction (Indiana) than to any New York “binding” cases.

The present cases and the remedy here proposed are in a number of other respects rather similar to Northern Indiana Public Service Co. v. W. J. & M. S. Vesey, 210 Ind. 338, 200 N.E. 620 decided by the Supreme Court of Indiana. The gases, odors, ammonia and smoke from the Northern Indiana company’s gas plant damaged the nearby Vesey greenhouse operation. An injunction and damages were sought, but an injunction was denied and the relief granted was limited to permanent damages ‘present, past, and future’ (p. 371, 200 N.E. 620).