THE DOCTRINE OF STARE DECISIS 639 



parties litigant, each determined to use every effort to win. It 

 involves the assumption that each of these parties litigant is repre- 

 sented by counsel learned in the law, skilled in its exposition, and 

 having, through compensation, or the hope of it, or charity, or that 

 love of a fight which is inherent in the human race, sufficient inter- 

 est in the outcome of the litigation to call forth their best efforts. It 

 involves the assumption that these counsel have familiarized them- 

 selves with the statutes, the judicial precedents, and the general 

 principles of law, public policy, and ethics which are applicable to the 

 controversy, and that each has reduced his view of the case to clear 

 and logical form. It involves the assumption that they come before 

 an able, experienced, and impartial judge or bench of judges. It 

 involves the assumption that each judge listens to each side until 

 the case has received all of the oral argument which it properly 

 requires, elucidating by questions any matter that may have been 

 left obscure or in ellipsis by counsel. It involves the assumption 

 that each judge is already familiar with the previous statutes and 

 judicial precedents that are applicable to the case, or else that during 

 the course of the argument, or by subsequent examination of the 

 books, he familiarizes himself therewith. When these assumptions 

 are all warranted by the actual facts, it is evident that after counsel 

 have exhausted all possible effort to present the various points of 

 view, and the judge has supplemented their work by means of his 

 own experience and independent research, and especially if he be 

 sitting in the highest appellate tribunal, with the benefit of the 

 repeated reexamination and sifting of argument in the courts below, 

 and of the light inevitably thrown upon a litigation which has been 

 pending during a long series of years by reasonings and analogies 

 such as are sure to come from time to time to the attention of counsel 

 whose minds have become impregnated with the case, or to be con- 

 tributed as fresh minds take it up upon the substitution of one coun- 

 sel for another, then the judge is better equipped to declare the cor- 

 rect application of established principles to the particular case before 

 him, and better equipped to apply general reasonings and analogies 

 to a case of new impression, than can be any closet student. The 

 different method and the different point of view of the legal text- 

 writer or philosopher are indeed invaluable in contributing to the 

 elucidation of unsettled problems; but, from the necessary limita- 

 tions of the human mind, no legal reasoning can be regarded as 

 having passed the final test until it has been subjected to the prac- 

 tical analysis of an actual litigation. 



The judge having thus made his decision, he very commonly 

 states orally or in the form of a written opinion his reasons therefor. 

 It is assumed that if this decision is preserved at all, and is brought 

 up for future use as a precedent, the facts before the court and the 



