648 PRIVATE LAW 



printed reports, and occasionally pay for certified copies of imprinted 

 cases. A committee of the American Bar Association in 1898 re- 

 ported that the power to determine which of their own decisions 

 could be thereafter cited, and which should apply only to the case 

 of the parties litigant then before them, was too dangerous a one to 

 be confided to any court. 



It has been suggested that the judges write fewer opinions, but 

 this would be a partial abandonment of the very advantage which 

 we have been taught to believe that we possess over the lawyers and 

 litigants under other systems of jurisprudence. One of the functions 

 of the judicial opinion is to help preserve the confidence of the bar 

 and the public in the ability, learning, fairness, and open-mindedness 

 of the judiciary as a whole, as well as the careful attention due to 

 the particular case, by indicating the grounds upon which the 

 decision is based whenever the case is one not entirely clear. Our 

 bar generally prize the custom and would object to its abandonment. 

 Its abandonment would tend to diminish that confidence in the 

 courts which is one of the corner-stones of our governmental system. 

 Moreover I think that every step toward the abandonment of opin- 

 ion-writing would be a step away from the doing of justice in the 

 individual cases before the courts. It is a fact whose knowledge is 

 not confined to the bar, that the result of investigation of a diffi- 

 cult problem must be subjected to the test of setting the facts and 

 reasoning down in ink, before the investigator himself can rest with 

 confidence upon his own work. Formulation in writing of the rea- 

 soning in support of a decision that has been made leads not seldom 

 to the discovery by the writer that the decision is wrong. A court 

 which, as a general rule, writes a careful opinion upon every appeal, 

 like the Supreme Court of the United States, shows a greater pro- 

 portion of reversals; and this, I think, is because the natural tend- 

 ency of an appellate court at first presentation of a case is usually to 

 affirm, both from the presumption in favor of the decision below, 

 and because, when that decision is erroneous, it is generally so 

 because the superficial first impression of the case was followed 

 without getting down to the bottom of it. Just as there is a conflict 

 between the dispatch of business and the administration of justice, 

 so there is often a conflict between the interests of the parties actually 

 present before the court, which call for an explanation, and the 

 interests of the clients and lawyers of the future, which are better 

 subserved by silence. 



It has been suggested that the individual judges make their 

 opinions terser and less ambiguous, drop out all padding, reduce to a 

 minimum the discussion of and quotation from previous authorities, 1 



1 It is important that the custom of citing precedents by title should be pre- 

 served, because the most convenient means of ascertaining what has been decided 

 upon any point is very commonly through the " Table of Cases Cited." 



