THE DOCTRINE OF STARE DECISIS 641 



controversy, and a serious danger that the counsel might be incom- 

 petent or careless, the judge mediocre or wanting experience, the 

 argument or submission of the case insufficient, the court's opinion 

 obscurely or defectively expressed, the decision inaccurately reported. 

 There was also the danger arising from the proverbial fact that 

 hard cases make bad law, so that a doctrine occasionally becomes 

 established because it did equity between the parties whose dispute 

 first suggested its consideration, although in nine cases out of ten 

 thereafter its application may be practically oppressive as well as 

 theoretically indefensible. During some generations of lawyers and 

 judges, however, the practical results approached the theoretical 

 standard to a degree which could hardly perhaps have been expected, 

 so nearly that the theoretical perfection of " case law " w r as almost 

 a fetich with the legal profession, and that an overwhelming majority 

 of the profession is still determinedly opposed to any change. 



Yet I believe not only that the doctrine of stare decisis, unless 

 some entirely novel and radical legislation can be devised to save it, 

 must disappear through the inevitable course of human progress - 

 and progress does not always lead from a worse to a better system - 

 but that its hold, in the more crowded federal and state courts at 

 least, has already to a considerable extent been weakened. It is 

 increasingly common to hear active and successful practitioners 

 in those tribunals say that they find less attention given now to 

 precedent. than formerly; that when a litigation comes before a 

 court of last resort which perceives or thinks that it perceives the 

 right to be on one side, they find an increasing tendency to disre- 

 gard, or to distinguish upon some trivial ground, any precedent to 

 the contrary ; that they find less and less discrimination between 

 general statements of law contained in a former judicial opinion and 

 the actual point that was decided; in other words, between what 

 may have been obiter in the opinion and what was really settled 

 thereby; that they find increasing weight attributed to general 

 statements of the law in text-books and encyclopedias, even in works 

 fresh from the press, photographs of whose authors, were they 

 exhibited to the court, might suggest the very recent law school 

 graduate. These things are generally spoken of among lawyers 

 by way of complaint, as if we were living in a temporary era of 

 carelessness, due to an overcrowding of the court calendars, or to 

 an imperfect manner of selecting the judges, or to a slovenly hibit 

 of presenting cases to the court, which should and will be corrected 

 in the future. I think, however, that the change is not temporary 

 but permanent; that it is the effect of forces which are permanent 

 and beyond human control; that while these forces may not be very 

 appreciably operative as yet in certain states, they are beginning to 

 modify conditions everywhere, and in the larger states are modify- 



