The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
He speaks in most instances to a small audience--the bar alone.
But it is the bar of this year and the next year and the next
century. Every volume of reports is part of the history of
American jurisprudence and of American jurisprudence itself.
Occasionally some case arises which involves large political
questions, or one of especial local interest. The opinion is
then read more widely. The newspapers seize it: reviews take it
up. It is not always easy to anticipate what decision will
become a matter of public notoriety; what opinion will be quoted
as an authority in other States; and what drop unnoticed except
by the lawyers in the cause. A judge, therefore, though he have
no better motive than personal ambition, is apt to do his best in
every case to state the grounds of his conclusions clearly and in
order. A certain style of American judicial opinion has thus
grown up. It is dogmatic. It offers no apologies. There is
neither time nor need for them. The writer speaks "as one having
authority." He does not argue out conclusions previously settled
by former precedents, but contents himself with a reference to
the case in the reports in which the precedent is to be found.
He is as brief as he dares to be without risking obscurity.
It is undoubtedly true that many reported opinions are of a very
different type. Some of Marshall's assume a tone of apology; but
in his day it was needed. He struck at cherished rights of
States, upheld by their highest courts, and struck them down, at
a time when the country was unfamiliar with the conception of the
United States as a national force. Many of those of judges of
inferior ability do not rise above their source. They are
verbose, repetitious, slovenly, inaccurate in statement, loose in
form; perhaps sinking into a humor or sarcasm always out of place
in the reports;[Footnote: See, for instance, Mincey _v._
Bradburn, 103 Tennessee Reports, 407; Terry _v._ McDaniel,
_ibid_., 415; Hall-Moody Institute _v._ Copass, 108
_id_., 582.] possibly unfair in describing the claims that
are overruled. But, as a whole, Americans need not fear to
compare the reports of their courts with those of foreign
tribunals. No judicial opinions, viewed from the point of style
and argument, rank higher than some of those written by American
judges.
Those of appellate courts are generally composed and delivered by
a single one of their members, but he speaks not only for the
court but for every other member of it who does not expressly
dissent. Nevertheless, as their conclusions depend on one man
for their proper expression, the responsibility for the
particular manner in which the opinion may set them forth is
properly deemed in a peculiar sense to rest upon him.
Public-domain text, read in full here on John Shaqi.
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