The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
The multiplication of American reports makes judicial precedents
of decreasing value to the American lawyer. English cases are
cited as authority far less frequently than they were before the
middle of the nineteenth century. The omnipotence of Parliament
and the free hand with which that has been exerted to change the
common law have tended to separate English from American
jurisprudence. Our written Constitutions have perpetuated here
ideas of government and property which England does not
recognize. Hence American precedents are of more use than
English. But American precedents are becoming so numerous that
the advocate who seeks to avail himself of them is tempted to
cite too many and to examine them with too little care. In each
State its own reports are the expression of its ultimate law.
With these every member of its bar must be familiar. But the
courts before which he argues listen to him with more
satisfaction and greater benefit if he deals with the principles
of law rather than with foreign precedents which may or may not
correctly apply them.[Footnote: See a valuable statistical
article on "Reports and Citations" in _Law Notes_ for
August, 1904.]
Not every opinion which is delivered is officially reported. In
most States the court has and exercises the power of directing
that such as they may deem of no substantial value to the
profession at large shall not be. Many are simply applications
of familiar rules which obviously control. Opinions of that kind
interest only the lawyers in the cause. In the unofficial
reports, however, such cases are sure to appear and the bar is
divided in opinion as to whether they should not also be given a
place in the official ones.
It is not always easy for the court or the reporter to determine
what decision may thereafter be relied on as a precedent.
Repeated instances have occurred in which such a use has in fact
been made and properly made of some not noted in the regular
reports, and not infrequently they have subsequently been
inserted in them.[Footnote: In the centennial volume (Vol. CXXXI)
of those of the Supreme Court of the United States, one hundred
and twelve opinions are printed, the first delivered over fifty
years before, which previous reporters had thought best to omit,
and two hundred and twenty-one more such are published in
Vol. CLIV. Whoever runs them over will be apt to think that the
previous reporters were right.] There is also in case of an
opinion not to be officially reported a loss of a valuable
safeguard against unsound decisions. A judge writes with more
care and examines the points of law which may be presented more
closely if he writes for the public and for posterity.
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