646 PRIVATE LAW 



should be made for the fact that in Marshall's time the Supreme 

 Court justices did much work besides, sitting in the courts of first 

 instance; but after all possible allowance on this account, the dis- 

 parity is still enormous. 



I believe it to be a fact that few if any of the federal appellate 

 courts, or similar courts in any of the larger states, can at the 

 present time secure that assistance from counsel, allow that time for 

 oral argument, go through that subsequent examination of the 

 authorities, discuss and analyze the general principles of law, public 

 policy, and ethics with that thoroughness, or observe that care in 

 formulating the arguments approved and the decision reached, 

 which are theoretically incidental to the development of judge-made 

 law. Certainly all these things cannot be done in more than a small 

 proportion, if any, of the cases presenting complicated facts or novel 

 features. The time allowed being insufficient, the character of the 

 work upon each case, taken by itself, must and does progressively 

 deteriorate. Very likely each appellate judge performs now more 

 labor, and doubtless he disposes of much more litigation, than his 

 predecessor of half a century ago. Considering the amount that he 

 disposes of, he generally approximates surprisingly well to the 

 right decision in the particular case; thus probably doing more good 

 on the whole than his predecessor, who could do better work on 

 each case taken by itself, but whose benefits reached a comparatively 

 trifling number of his fellow citizens. But a man who may not be 

 a John Marshall to begin with, 1 and who cannot give to a single 

 case the time which John Marshall would have given to it had it 

 arisen in his time, although an examination of the precedents at the 

 present day would take many times as long as was necessary in the 

 lifetime of John Marshall, cannot be expected to bestow on it the 

 eare which was then or for a generation thereafter considered abso- 

 lutely requisite. It is too much to ask of him an opinion which, in 

 addition to being a reasonable approximation to justice in the case 

 before him, shall also satisfactorily serve as evidence of the law on 

 the subject for the future. No wonder that he himself, to judge 

 from the internal evidence of his opinions, rates the language of any 

 young textwriter as high as he does the dicta of his own court; and 

 that the latter, if terse and pithy, he quotes without much investi- 

 gation as to whether they had been obiter or not. 



Nevertheless the judges and the bar and community at large have 

 all continued nominally to treat the doctrine of stare decisis as still 

 in full force; and with all the modern difficulties in their way, so 

 many judges stand bravely by it that the citizen must always be pre- 

 pared to have it enforced against him in a given case with a rigidity 



1 I do not go into the question of the ability and learning of the judge elected 

 under present political conditions, as compared with his predecessors. 



