THE DOCTRINE OF STARE DECISIS 645 



At the stage of oral argument, the old custom of allowing all the 

 time necessary for the proper elucidation of the particular case in 

 hand has become obsolete. It has been supplanted by rules putting 

 an arbitrary time-limit upon argument, irrespective of the case; and 

 while it is in the discretion of the court to extend the time, this is 

 ordinarily done only in cases of the greatest immediate importance, 

 although the others may turn out to be the cases of the greatest 

 ultimate importance in determining the future course of development 

 of the law. The highest courts indeed, like the Supreme Court of 

 the United States and the Court of Appeals of the State of New 

 York, allow sufficient time to cover ordinarily a sufficient statement 

 of the facts of the case and, if it be a comparatively simple one, a 

 fairly satisfactory outline of the arguments; but it is so impossible 

 any longer within any practicable time-limit to discuss the authorities 

 as they used to be discussed within the professional experience of 

 men still living, that except under exceptional circumstances experi- 

 enced lawyers do not discuss authorities at all, but submit them to 

 the court in printed briefs. Moreover, even in the court last men- 

 tioned, the present liberal time-limit applies only to one class of 

 appeals. Other appeals, including probably the majority of those 

 which will be important in the future, are given a hearing so short 

 as to be commonly inadequate to all purposes. In the lower appellate 

 courts the nominal time-limit is apt to be still shorter, while in actual 

 practice some courts feel forced to discourage all oral argument 

 whatever and practically deprive themselves of the benefit of the 

 opportunity, so important to the true understanding and solution 

 of a difficult enigma, of extending cross-questioning of counsel by the 

 court. 



Nor does time permit that standard of care in the subsequent 

 examination of the case which used to be considered a prerequisite. 

 Nothing approaching the same care can now be given. During the 

 last year of the chief justiceship of John Marshall, the United States 

 Supreme Court, consisting then of seven justices, filed 39 written 

 opinions. During the year 1903-1904 the same court, with nine 

 justices, filed 212 written opinions, besides disposing of 208 cases 

 without opinion. During the same year the New York Court of 

 Appeals filed 221 opinions and disposed of 419 cases without opinion. 

 It appears from the report of a commission appointed by the Governor 

 of New York in 1903 that in one of the appellate courts sitting in 

 the city of New York the average number of opinions written by each 

 judge per year was considerably more than one hundred, in addition 

 to which he had to examine and record his concurrence with or dis- 

 sent from about four hundred other opinions in cases in which he sat, 

 and participate in the discussion of about two hundred additional 

 cases in which no opinion was rendered. Of course allowance 



