THE DOCTRINE OF STARE DECISIS 649 



and cease altogether from expressing views upon subjects not abso- 

 lutely necessary to the decision of the case in hand. That is a 

 reform that undoubtedly ought to be made; but to expect it is hope- 

 less. Few men seem to have the faculty of expressing themselves 

 tersely and confining themselves to the point; and of these few men 

 the majority have not the other qualities necessary to the attain- 

 ment of public office. Nor can the public be expected to discipline 

 even the worst judicial offenders. These are quite as likely as any 

 to receive promotion or unanimous reelection. There are too many 

 other elements to be considered in estimating the judicial personality. 

 Nor can discipline in this matter be expected from the chief justice 

 or other members of the tribunal. A man's style is too personal 

 a matter. It is all that an appellate court can do to approximate to 

 unanimity in its decisions. The small amount of time that it has to 

 devote to the form in which its work is given to the public is shown 

 by the occasional long tenure of office under the highest courts of 

 grossly incompetent reporters. 



I have not found any practicable suggestion toward materially 

 reducing the mass of current judicial literature, although legislation 

 might conceivably reduce to a comparatively small compass the 

 judicial literature of the past without depriving us altogether of 

 the benefits of our judicial law. A statute is very often enacted for 

 the sole purpose of repealing the rule of law established by some 

 particular judicial decision. Such a statute is never accompanied by 

 a repealing clause, expressly declaring the case to be not the law; 

 but conceivably it might be. Conceivably a statute might officially 

 declare that the rule of stare decisis should not apply to a given 

 reported case because it is disapproved or has been overruled; or 

 that the case should not be cited because it is obsolete or of insuffi- 

 cient importance. England has published an official edition of her 

 statutes so far as they are now recognized as remaining in force. 

 Those not in force are officially omitted, and nobody need ever 

 again waste time and effort over the question whether or not they 

 are still alive. New York has this year appointed commissioners for 

 a like purpose. A similar process might conceivably be applied 

 to our judicial literature, and an official list prepared of cases to 

 which the doctrine of stare decisis should, in future, be restricted. If 

 the plan be practicable, we can well afford to employ our highest 

 talent for the purpose. The official list would not need to declare that 

 every case upon it were necessarily the law in all respects. But it 

 would be accompanied by a provision forbidding the future citation 

 of any that had been omitted, on the ground that they have been 

 officially found to be abrogated by statute, or overruled, or obsolete, 

 or dependent upon questions of fact alone, or mere useless repeti- 

 tions of rules otherwise fully settled. It may be possible that some 



