Case law

Key Takeaways

• Case law is made by judges deciding real disputes and writing opinions, while statutes are enacted by a legislature.
• Washington courts apply the common law as the rule of decision except where it conflicts with the state or federal constitution or with a statute (RCW 4.04.010).
• Only appellate decisions a panel finds have precedential value are published in Washington, and only published opinions guide later courts (RCW 2.06.040).
• A legislature can override judge-made law, and Washington did exactly that for real estate agency duties in chapter 18.86 RCW.

What It Means

Case law is the body of law built out of written court decisions. A judge resolves a real dispute between real parties, explains the reasoning in an opinion, and that reasoning becomes a guide for the next court facing similar facts. Lawyers call the practice stare decisis, which means standing by what has already been decided.

Case law and Common Law overlap without being the same thing. Common law is the older inherited body of judge-made rules. Case law is what American courts do with that inheritance now: extend it, narrow it, or set it aside when it no longer fits. Case law also grows up around statutes, because somebody has to decide what an ambiguous phrase means when it lands in a real transaction.

Two things limit how far a single decision reaches. The first is level. A decision binds only the courts below the one that issued it, so a trial court ruling settles that case and nothing else. The second is publication. An unpublished decision resolves the dispute in front of the court without setting a rule for the next one. For a broker the working takeaway is short. Statutes and administrative rules set the baseline, and court decisions tell you how those words have been read when somebody fought about them.

How It Works in Washington

Washington starts from a statute about judge-made law. RCW 4.04.010 provides that "the common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state." Judge-made law fills the space the legislature has not occupied.

Precedent comes from published appellate opinions. Under RCW 2.06.040, "all decisions of the court having precedential value shall be published as opinions of the court," each Court of Appeals panel decides whether a decision carries enough precedential value to publish, and "decisions determined not to have precedential value shall not be published."

Real estate agency is the clearest Washington example of a legislature answering the courts. Chapter 18.86 RCW replaced the case law of broker agency with a written duty list, and RCW 18.86.110 says so outright: "The duties under this chapter are statutory duties and not fiduciary duties. This chapter supersedes the fiduciary duties of an agent to a principal under the common law. The common law continues to apply to the parties in all other respects." That is why a Washington broker studying Limited Dual Agency reads RCW 18.86.060 rather than old fiduciary cases. Our guide to Washington's written services agreement law covers the current version of that chapter, and our license law overview shows where the statutes and rules sit.

Example

Dana Okafor lists a Kirkland townhouse for $689,000 with Cascade Ridge Realty. Three weeks later a broker at the same firm brings a buyer, Sam Wexler, who offers $702,000 with a 21 day financing contingency. The firm acts as a limited dual agent with written consent from both sides, and the sale closes. Afterward Dana learns Sam had told his broker he was prepared to go to $715,000.

Dana sues, and her first argument comes from older decisions describing the undivided loyalty of a Fiduciary Relationship. The court starts somewhere else. RCW 18.86.110 says the chapter's duties "are statutory duties and not fiduciary duties" and that it "supersedes the fiduciary duties of an agent to a principal under the common law." So the question narrows: did the firm meet the specific duties in RCW 18.86.030 and RCW 18.86.060, including the duty in RCW 18.86.060(2) "to not disclose any confidential information from or about either party"? A statute the legislature passed in 1996 reshaped what the older case law would have said about this same $702,000 sale.

Common Mistakes and Exam Traps

• Common law is the inherited body of judge-made rules. Case law is what American courts decide today, including decisions that interpret statutes.
• A statute controls over a conflicting court decision going forward, because a legislature can change the rule. A court interprets a statute or strikes it down on constitutional grounds; it does not repeal one.
• Not every court decision is precedent. A Washington Court of Appeals panel publishes only the decisions it finds have precedential value (RCW 2.06.040).
• Trial court rulings bind the parties in that case, not other courts. Precedent comes from published appellate opinions.