THE DOCTRINE OF STARE DECISIS 647 



and technicality that would have been quite improbable in the days 

 when time permitted the precise state of facts and the precise line of 

 reasoning underlying each previous authority to be more carefully 

 analyzed, and tacit limitations to the breadth of its statements 

 recognized. On the other hand, as the wilderness of authorities pre- 

 sented upon the briefs of counsel tends every year to become more 

 hopeless, the courts in general tend more and more to decide each 

 case according to their own ideas of fairness as between the parties 

 to that case, and to pass the previous authorities by in silence, or 

 dispose of them with the general remark - - one of those remarks that 

 the recording angel is supposed to overlook - - that they are not in 

 conflict. Different men, however, are of different minds. As the 

 time spent upon oral argument and subsequent consideration of each 

 case tends to lessen, the chances of difference in decision of two 

 substantially similar cases coming before different sets of judges, or 

 even before the same judge in different years, tends to increase. 

 Apparent conflicts of authority thus arise. Subtle distinctions are 

 taken in order to reconcile the conflict if possible. The law is thrown 

 into doubt, and a lawyer thereafter cannot advise his client how to 

 act in order to enjoy his rights and keep out of harassing litigation. 

 The point in conflict reaches the court perhaps again and again, 

 and distinctions grow subtler and subtler, until once in a while a 

 happy solution is found by holding that some then comparatively 

 recent case, although avowedly but distinguishing the early ones 

 in some incomprehensible manner, really overruled them. Thus for 

 a moment the doctrine of stare decisis fails to operate, and by its 

 failure the law is clarified, reason triumphs, useless litigation ends, 

 and the citizen learns how in one contingency to protect his rights. 



Various plans for cutting down the bulk of the current reports 

 have been under discussion for the past twenty years, but up to this 

 time none has been found to which the objections raised have not 

 been sufficient to prevent any effective propaganda. 



It has been suggested that the reporting of dissenting opinions 

 be forbidden. But these are often of great value in showing the 

 exact scope of a decision, and when the court is nearly equally bal- 

 anced they may be almost as weighty as the prevailing opinions in 

 the courts of other jurisdictions. 



It has been suggested that the judges designate which opinions 

 shall be officially published, and that they restrict the publication 

 within narrow limits. But opinions are public records. The bar 

 insists upon their right to cite cases, whether reported or unreported 

 in the official series. Often the cases thus unreported turn out to be 

 among the most important precedents. It has always been and still 

 is common for the judges to exercise this power, but the usual result 

 is that the profession have to subscribe to an unofficial series of 



