Case Law and Stare Decisis: Concerning "Prjudizienrecht in Amerika"

Author(s): Max Radin

Source: Columbia Law Review, Vol. 33, No. 2 (Feb., 1933), pp. 199-212
Published by: Columbia Law Review Association, Inc.
Stable URL: http://www.jstor.org/stable/1115948
Accessed: 29/01/2009 16:04
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=clra.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.
JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the
scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that
promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org.
Columbia Law Review Association, Inc. is collaborating with JSTOR to digitize, preserve and extend access to
Columbia Law Review.
http://www.jstor.org
COLUMBIA LAW REVIEW
VOL. XXXIII
FEBRUARY,
1933 NO. 2
CASE LAW AND STARE DECISIS:
CONCERNING
PRAJUDIZIENRECHT
IN AMERIKA*
W hen the
great
Omar
performed
the
tawaf
around the Ka'ba in
Mecca,
and kissed the black stone there
enshrined,
he is said to have
declared: "I know thou art a
stone,
powerless
to
help
or
hurt,
and I
would not have kissed
thee,
if I had not seen the
Envoy
of God kiss
thee." This
happened,
if it
happened
at
all,
some thirteen centuries
ago.
It was
currently
believed before that time and it has
especially
been believed
since,
that
lawyers
and
judges
are
very
much in the case
of the
Caliph Omar,
that
they
are
principally engaged
in
doing things
they
know to be irrational for no better reason than that
they
have
seen some one else do them. And of some
lawyers
and
judges,
it can
surely
be said that
they faithfully perform
the
tawaf,
that
is, they
walk
around the Ka'ba seven
times,
doubtless to see whether there is some
way
of
escape.
This habit of
following
the lead of other
men,
some-
times with obvious
reluctance,
is a
thing
with which
laymen
have from
time immemorial
reproached lawyers,
but
only
in the Common Law
systems
has it been
openly accepted by lawyers
as a rule and
given
a
Latin dress in the famous
maxim,
stare decisis et
quieta
non movere.
The
history
of this
expression,
or rather of the rule it
purports
to
embody,
has been
frequently
examined,
most
recently perhaps by
Mr. C. K.
Allen,l
but whatever its
history,
the existence of some such
doctrine has for a
long
time been taken to be axiomatic in the Com-
mon Law and to constitute in
practice
a
striking
contrast between it
and the Civil Law. None the less the exact extent of the rule is not
quite
clear. Courts have been restive under the
angry
criticism to which
they
have been
subjected
and have reacted in one of three
ways:
either
by defiantly maintaining
stare
decisis, by painfully rationalizing
it,
or
*K. N.
LLEW ELLYN, PRAJUDIZIENRECHT
UND RECHTSPRECHUNG IN AMERIKA
(1933).
1LAW IN THE MAKING
(1927)
147. There is a different
presentation
and
approach
in
Oliphant,
A Return to Stare Decisis
(1928)
6 AM. LAW SCHOOL REV.
215.
COLUMBIA LAW REVIEW
by boldly rejecting
it. It often
happens, further,
that the defiant main-
tenance and the bold
rejection
are both
merely
screens behind which
courts in fact do the
opposite
of what
they
declare.
W hat does the rule
really
mean? Professor Goodhart in an able
paper2
has
given
its
precise content,
as
English
courts have announced
it,
and has
correctly
come to the conclusion that those American courts
which have varied this content have
really
to that extent abandoned the
rule.
I shall confine
myself
to that element in stare decisis which is the
most difficult for
laymen
to stomach-the doctrine that a court is bound
by
its own
previous
decisions. This is the rule of
precedent proper,
and the term "rule of
precedent"
will be used hereafter as a variant of
the term stare
decisis; although they
are not
really logically
coextensive.
Courts,
I
say,
have been restive under the attacks made
upon
the rule
of
precedent,
and in America those courts which have maintained
it,
have
declared, first,
that it is not absolute
and, second,
that in the main
it is a
good
rule for a number of reasons. Most of those reasons are
some forms of
estoppel.
Courts have allowed
persons
to assume that
a certain
legal
doctrine would be
applied.
It is
contrary
to
elementary
justice
to allow
people
to transfer
property
and
obligate
themselves
on the faith of this
expectation
and then
disappoint
them. Or
else,
if
precedents
are followed the law is more
readily
discoverable than if
they
are not. The
rule,
we are
told,
makes for
certainty.
Other rea-
sons are
assigned
but these two are the most
important.
Evidently
the rule of
precedent
is not to be confounded with def-
erence to the
authority
of the wise and
just
who have
preceded
us.
If we believe that Coke was
infallible,
to follow his
judgment
is not to
apply
the rule of stare
decisis,
but is a
gesture
of
humility
or
piety,
or
an
example
of inertia. The law has
already
been discovered
by
a man
better fit to find it out. It is
certainly
futile to rediscover America or to
reinvent the steam
engine.
If a court follows a
previous decision,
because
a revered master has uttered
it,
because it is the
right decision,
because
it is
logical,
because it is
just,
because it accords with the
weight
of
authority,
because it has been
generally accepted
and acted
on,
because
it secures a beneficial result to the
community,
that is not an
application
of stare decisis. To make the act such an
application,
the
previous
decision must be followed because it is a
previous
decision and for no
other
reason,
and it becomes clear that we cannot be certain that the rule
is
being
followed,
unless it is contre
coeur,
just
as Kant was
undoubtedly
2Case Law in
England
and America
(1930)
15 CORN. L.
Q.
173.
Reprinted
in
GOODHART,
ESSAYS IN
JURISPRUDENCE
AND THE COMMON LAW
(1931)
c. 3.
200
CASE LAW AND STARE DECISIS
right
in
holding
that obedience to the
categoric imperative
is discernible
only
when
something disagreeable
is commanded.
That is to
say,
the rule of stare decisis is
evidently
and demon-
strably being
maintained
only
when the court declares that the conclu-
sion to which the rule constrains it is one which it would not have
reached
except
for the
rule,
a
conclusion,
in other
words,
of which the
court does not
morally approve,
which cannot be rested on
conscience,
equity
or the
public
welfare. If there is
any
additional reason for a
decision besides the coercive
precedent,
the situation at once becomes
obscured. Stare decisis
may
be
operating
but we cannot be sure of it.
On the other
hand,
clearly
if there is in fact a coercive
precedent pres-
ent,
any
further reason is
quite
irrelevant. Stare decisis is such a rea-
son as will have no fellow. To
say
that a court reaches a conclusion
partly
because it is
following
a
precedent
and
partly
because the con-
clusion is
just,
is
really impossible.
W e
may say,
if we
choose,
that the
conclusion is
just,
and also
happens
to be in accord with
precedent,
or
that the
precedent
is
being
followed and that it also
happens
to secure
a
just
result. In either case the second clause adds
nothing
whatever
to the reason for the court's action.
Something
else must be added. It is
quite
common to find courts
supporting
their decision not
by one,
but
by many
citations of
prec-
edents. Can this be defended on strict
principles?
If the court is
bound,
it is bound
by
one decision. A second decision adds
nothing.
It
may prove
that the first decision was
binding,
but
by hypothesis,
we
assumed it was. If a court is not bound
except by
a
longa
series rerum
similiter
iudicatarum,
what binds it is not the
precedent,
but
estoppel
or
the force of custom or
something
like that. W e cannot make a rule
stronger by adding
another rule to it. W e are
following
either the
one rule or the other.
That
may
be called the
strict,
or the stark and
naked,
rule of stare
decisis,
and it is
certainly
the
way
it is
commonly supposed
to be
ap-
plied.
And in connection with this formulation we
may
ask, first,
how
does it work in
detail,
and
second,
can it be defended? To both
ques-
tions the
lawyer
of a former
generation
would have
brought
an in-
different
shrug.
The rule works in the obvious
way
in which
Caliph
Omar's
kissing
of the fetish in the Ka'ba resembled that of his Master
and the rule need not be
defended,
because the Common Law
justifies
itself. W hen one Common
Lawyer
talked to
another,
this did
very
well. One does not
question
what is obvious. And when a Common
Lawyer
addressed himself to the
laity,
he
generally suggested
that
the
beauty
and effectiveness of the rule of stare decisis was a
profes-
201
COLUMBIA LAW REVIEW
sional
mystery
with whioh the
lay
mind was unfit to
grapple.
It is
only
when
lawyers
were faced with the
necessity
of
explaining
the rule
to
Civilians,
that the real
difficulty
became
apparent.
After
all,
these
men were
lawyers
also,
who on
practical
matters seemed to have
largely
the same
goal
and
something
of the same
technique
as themselves. And
so far from
finding
the rule
obvious,
Civilians
professed
themselves
unable to understand how it could be reconciled with reason or
justice.
It thus comes about that the most
thorough
and exhaustive
analysis
of the rule in its American
application
is that which
Llewellyn
has
pre-
pared
as a result of his recent
experience
as
visiting professor
in
Leipsic.
The book is the
just published Prdijudizienrecht
und
Rechtsprechung
in
Armerika. It is a
fornlidable
volume in two
parts,
of which the first is
the
general exposition
and the much
larger
second
part
contains the
"Materials," which in almost
every
instance is a
case-usually
con-
densed and
supplied
with comment and
analysis;
but
among
these
cases,
there are also selections from
outstanding
masters of American
legal
science, Pound, Cardozo,
Holmes and a number of others. There is a
selected
bibliography
at the end of Part I,3
and a selection of
extremely
recent
articles,
at the end of Part II.4 The net result is that German
jurists
have in
easily
accessible form a brilliant and
complete presenta-
tion of a fundamental doctrine of American
law,
and American
jurists
can
only
trust that some one will do as much for them.
Perhaps
a
visiting professor
can be drafted for that
purpose.
Evidently Llewellyn
has a much
larger
task before him than that of
merely expounding
the American
theory
of
precedent.
He has to make
clear to
foreigners
our intricate
machinery
of courts and to work out
such theories as can be
gathered
of American
justice.
Since he has to
do this for
persons
who are accustomed to subsume their ideas under
broad
principles,
he can
scarcely help examining
such fundamental
questions
as
sociological backgrounds,
freedom of the
will,
and the
psychological processes
of which
judicial thinking
is a
part.
The whole
book, therefore,
is a
great
deal more than a
presentation
of a
legal prin-
ciple
in its American
application.
It is a
setting
forth of a
theory
of
law,
in which the known breadth of view and keen critical sense of the
author are
splendidly
evidenced.
W hat becomes at once
apparent,
as Professor Goodhart's
analysis
has
already
shown,
is that the rule of
precedent
in the United States is
very
far from
being
what
laymen suppose
such a rule must be. Instead
of
being simply
a mechanical device
which
forces a court in a
given
3
Pp.
120-2.
'P. 351.
202
CASE LAW AND STARE DECISIS
direction,
it turns out to be an instrument
capable
of a
great many
vari-
ations and
allowing
movement in
ways
that have little obvious relation
to the direction indicated in the
precedent.
In the cases which
Llewellyn
analyzes,
however,
the
precedent
is never
directly disregarded.
It is
always
stated that under certain conditions-not now
present,
within
certain limits-here
transcended,
the
precedent
would be in fact con-
trolling.
Llewellyn
has
quite properly explained
the character of the rule
by analyzing
a few cases in which a
previous
case was
consciously
fol-
lowed,
although
it was not
quite approved
of,
and a
great many
more in
which the
precedent
was
qualified
or extended. In these latter
cases,
evidently something
else was
necessary
to reach the
judicial
conclusion
than the mere
presence
of the
precedent
and
Llewellyn
shows
by
means
of these illustrations that the rule of
precedent
is far more
flexible,
at
least in the United
States,
than it seems to the uninitiated.
That
precedent law,
and
particularly
the Common Law form of
it,
implies
a closed
system-Geschlossenheitstheorie5-may
well be
doubted. It has indeed been said of the Common
Law-alas,
how
often! -that it was the
"perfection
of
reason,"
but this
grandiloquence
is
scarcely
to be taken more
seriously
than the Palmist's statement that
Jerusalem
was the
"perfection
of
beauty."
Less
partial
observers
might
have reserved a doubt. Coke and Common
Lawyers
were
jealous
of
statutes and
regarded
them as
impertinent meddlings,
but that does not
quite
establish a Geschlossenheitstheorie. One has
only
to remember
that even the
post-Coke
Common Law
recognized
that there were cases
of first
impression, "primiae impressionis."
How little the earlier Com-
mon Law
thought
of itself as a closed
system
is now an historical com-
monplace.
The matter is of moment
particularly
in the United
States,
since in most of the
states,
questions
are
constantly arising
for which
on
any theory
of
precedent
there is no
binding authority.
To be
sure,
"persuasive" precedents
from other
jurisdictions
are
generally
available,
but
persuasion may
be,
and often
is, resisted,
and an
independent
con-
clusion is
reached,
without the aid of
precedent
of
any
kind.
The
possibility
that a case
may
be denominated a case of first im-
pression
is
nothing
less than the
recognition
that there
may
be
gaps
in
the law.
And,
as in the Freirecht
movement,
the mere
capacity
to
see
gaps
in what to others is a solid wall is
enough
to
permit
a
wholly
new attitude to the law to
arise,
if one chooses to have such an atti-
tude. After
all,
in the case of a
"gap"
or in a "case of first
impression"
5II, 4.
20.3
COLUMBIA LAW REVIEW
the
really important thing
is to find that the
gap
is there. There will be
no lack of material to fill it.
German readers will thus
get
a
realistic,
subtle and acute discus-
sion of
just
what
Priijudizienrecht
comes to in the United
States,
and
will learn that there is no inherent reason
why
the wilderness of
single
instances,
the lawless science of our
law,
if handled
by
wise and
just
men,
should be
incapable
of
securing any
reasonable
goal
such men set
themselves. As a matter of
fact, Llewellyn might
have
gone
farther.
One would not
fully
realize from his
presentation just
how free Ameri-
can courts have felt themselves to overrule as well as to
"distinguish"
and to
"gnaw"
at an
objectionable precedent.
The term "overrule"
deserves to have been more
prominently brought
out,
if American law is
to be
expounded.
Not
only
do we have the
capital
fact that the United
States
Supreme
Court has
formally
and
unqualifiedly rejected
stare
decisis and has
frequently exemplified
its
rejection,
but
many
state
courts have overruled their
precedents, although
in
general professing
to
accept
the rule. There is that notable statement of the
court,
"Shall
we stumble where
they
stumbled?" And in the case of
Alferitz
v.
Borgwardt,6 originally
included in
Llewellyn's
materials7 but crowded
out
by exigencies
of
space,
we have the
astonishing
assertion made in
1899,
that "a
lawyer
who could have advised his client to
rely upon
the
Berson case8
[decided
in
1883]
in
making
a loan would show his in-
capacity."
It is not
often,
even in the wide
open spaces,
that courts
open
such a
devastating
fire on their own decisions.
Overruling
is
rare,
of
course,
but it
may
be stated that it
happens
oftener than the other
extreme,
to-wit the slavish
following
of a de-
cision
against
the court's own notion of
right
and
wrong.
This fact is
obscured
by
a common formula like: "W hatever view we
might
have
taken if the
question
were a new
one,
etc." In most of these
instances,
it is
easy enough
to see that had the
question
been a new
one,
the de-
cision would none the less have been the same. But the
implied
over-
ruling
that is done
by
means of
"distinguishing"
is a device with which
scholasticism has
long
been familiar and which nowhere has been so
freely,
and we
might
almost
say flagrantly, employed,
as in Common
Law courts. Then there is the almost
desperate
resource which
may
be
called sterilization of the unwanted
precedent.
"The case of Smith v.
Jones rests
upon
its own facts and is not to be extended." The
prec-
edent is allowed to
live,
but it shall have no
progeny.
Declared from the start not to be
absolute, subject
to the reserved
6126 Cal.
201,
58 Pac. 460
(1899).
'1, 6.
8
Berson v.
Nunan,
63 Cal. 550
(1883).
204
CASE LAW AND STARE DECISIS
power
to
overrule,
and to the
frequently
exercised
power
to sterilize
and to
distinguish,
the American rule is even more different from the
strict or stark rule of stare decisis than we
might
have
supposed
after
reading Llewellyn.
W ould we be better served if we
clung
to the
strict rule?
W hat is
really
done when a
precedent
is followed? Those who lean
on
metaphors
think of
treading
in the still visible
footsteps
of a
pred-
ecessor.
But,
of
course,
the
process
is not
really
like that at all. Per-
haps
we shall see it
by observing
its
operation
in a famous
case,
that
of MacPherson v. Buick Motor Co.9 decided in
1916,
in which we have
the
advantage
of a
characteristically
fine
opinion
of
Judge
Cardozo,
then
recently appointed
to the Court of
Appeals
of the State of New York.
It is
especially apt
for our
present purpose
because it is used
by
Llewel-
lyn
in his
book,10 together
with a law review
comment.l
The situation was
simple
and could not be better stated than in the
words of the court. "The defendant is a manufacturer of automobiles.
It sold an automobile to a retail dealer. The retail dealer resold it to
the
plaintiff.
W hile the
plaintiff
was in the car it
suddenly collapsed.
He was thrown out and
injured.
One of the wheels was made of de-
fective
wood,
and its
spokes
crumbled into
fragments.
The wheel was
not made
by
the
defendants;
it was
bought
from another manufacturer.
There is
evidence, however,
that its defects could have been discovered
by
reasonable
inspection
and that
inspection
was omitted. There is no
claim that the defendants knew of the defect and
wilfully
concealed it."
Shall the Buick
Company pay damages
to MacPherson? I have
presented
this situation to some
twenty laymen
of various
types
and
nearly
all have
immediately
and without hesitation answered the
ques-
tion in the affirmative. It
may
be said that an affirmative answer ac-
cords with a
generally accepted
sense of
right
or
justice,
even
among
persons
who would be
quite incapable
of
formulating
a "rule" or a
"principle"
or a
"theory"
which could cover it. It was also the answer
of the
majority
of the court. One
judge
dissented. One
judge
did
not vote.
Now,
the
majority opinion
in the case is
not,
properly speaking,
a
statement of the reasons which led the court to this conclusion. It is
a brief
essay
on a
particular phase
of the law of
damages,
on "a branch
of the law" as the court
directly
calls
it,
and from
every point
of view
it is an admirable
essay.
I venture to
say
that in both
Germany
and
9217 N.Y. 382,
111 N.E. 1050
(1916).
10
II,
174-87.
"II, 183;
Note
(1927)
40 HARV. L. REV. 886.
205
COLUMBIA LAW REVIEW
France-to take two
examples
of Civil Law countries-the result would
have been reached
immediately
and
justified by
a brief "attendu"-and
a statement that when a loss must fall on one of two innocent
persons,
it is
just
that it be
imposed
on the one whose
negligence
contributed
to the situation which caused the loss. I venture further to
suppose
that the result is one which the
majority,
and
perhaps
the entire
court,
desired to
reach,
the one which accorded with their almost immediate
feeling
of
justice, just
as it did with such a
feeling among laymen.
And it is with these two
assumptions
that I should like to look more
closely
at the decision.
There is not a word of the
justice
or the
injustice
of
distributing
the loss. There is instead a statement of a number of
cases,
which
may
be listed:
(1)
Thomas v.
W inchester,
6 N.
y.12; (2) Loop
v. Litch-
field,
42 N.
Y.13; (3)
Losee v.
Clute,
51 N.
Y.14; (4)
Devlin v.
Smith,
89
N.Y.15; (5)
Statler v.
Ray Co.,
195
N.Y.16; (6) Torgesen
v.
Schultz,
192 N. Y.17 The numbers of the
reports
indicate the
approxi-
mate intervals that
separated
these cases. It is further stated that a
number of cases between 89 N. Y. and 192 N. Y. have been
passed
over.
In all these
cases,
the issue was whether a manufacturer of an
article or a
sub-purchaser
should bear the loss of an
non-wilfully
caused
injury.
In
(1)
the article was a
package
of
belladona,
misbranded as
dandelion,
in
(2)
it was a circular
saw,
in
(3),
a steam
boiler,
in
(4),
a
painter's scaffold,
in
(5)
a
large
coffee
urn,
in
(6)
a bottle of aerated
water. In
(1), (4), (5), (6)
the manufacturer was held liable. In
(2)
and
(3),
he was exonerated and in both these cases there had been
something very
much like an
assumption
of risk
by
the
original pur-
chaser.
W hen the court decided in favor of the
sub-purchaser,
was it fol-
lowing (1), (4), (5),
or
(6),
or even
(2),
or
(3)
on the
principle
of
exceptio probat regulam
in causis non
exceptis? Evidently, elementary
justice
will allow that when the risk is
assumed,
the
original
manu-
facturer is not
necessarily
liable. I have
suggested
that
by
the strict or
stark rule of stare
decisis,
it is inadmissible to
say
that it was
following
them all. Either
(1)
controlled
(4),
which controlled
(5)
and so
following,
or
they
were all
independent
and
only
one need be men-
tioned. It
may
be said that in all
subsequent cases, (1)
had been
mentioned as a
point
of
departure.
12397
(1852).
13351
(1870).
14
494
(1873).
15470
(1882).
6
478,
88 N. E. 1063
(1909).
"156,
84 N.E. 956
(1908).
CASE LAW AND STARE DECISIS
Did
(1) compel
the decision in MacPherson v. Buick Motor Co.?
The
compulsion
could not have been
very strong,
because in the mind
of the defendant's
attorneys
and in that of Chief
Judge
W .
Bartlett,
(1)
compelled
the
opposite
result. The
majority opinion
in fact
suggests
that it is
really following (4),
and this can be met
by
the
minority only
by
the assertion that
(4)
can be understood
only
as an
attempt
to fol-
low
(1),
and that it is still
(1),
therefore,
which must be
kept
in mind.
Now,
what was decided in
(1)?
It was decided that a manufac-
turer who sold belladona in a
package
marked dandelion must
pay
the
damages
to
any
one who
buys
that
package,
no matter from whom he
buys
it. How can we follow that
case,
when we are
dealing
with auto-
mobiles?
Evidently only
if belladona and a Buick automobile resemble
each
other,
so that either belladona or the Buick can
symbolize
the com-
mon class. If the class is
(A) "obviously
and
necessarily dangerous
substance,"
the belladona can
symbolize it,
but
perhaps
not the
Buick,
and it is this class which
Judge
Bartlett
says
it meant to
symbolize.
If the class is
(B)
"substances
potentially dangerous
if
defectively
made or
mis-labelled,"
either can
symbolize
it.
Judge
Cardozo
says
this is the class. One could
go
further and
say
the class is
(C) "any
manufactured article which could
possibly
cause an
injury,"
or that it
is
(D) "any
manufactured article." Each one of these classes is a
longer
and
larger generalization
of the belladona in
(1),
a wider and
wider determinable of which the belladona is the determinate.
Judge
Bartlett would
stop
at
(A)
and
Judge
Cardozo at
(B).
Neither
ap-
parently
would
go
as far as
(C),
not to
say (D).
As far as
logic
is
concerned,
the decision to
stop
at
any particular
generalization certainly
is not derived from the decision in
(1) quite by
itself. The belladona could
easily
be classed under
(A), (B), (C)
or
(D). Indeed,
the
generalization might
have
stopped long
before that.
The class
symbolized might
have been
(a)
"misbranded
poisons capable
of fatal results" or
(b)
"misbranded
poisons."
Even if the court in
(1)
had mentioned the
class,
and
said,
"W e mean this decision to
apply
to this class
only
and to
go
no
further,"
that would not have concluded
us. It is
very
doubtful whether a court has a
power
to limit the
proc-
ess of
generalization
of its decisions. But if in case
(4),
the court
had
said,
"the manufacturer is not liable because a
painter's
scaffold is
not within class
(A),
i.e. is not an
obviously
and
necessarily dangerous
article,"
then we should have a real limitation. Case
(1)
allows of the
progressive generalizations (a) (b) (A) (B) (C) (D).
Case
(4)
would then have
stopped
it at
(A),
as
Judge
Bartlett wished to do in
the case of the Buick.
But, evidently,
it must be such a
negative
de-
207
COLUMBIA LAW REVIEW
cision which will check the
generalization,
and an affirmative
decision,
the mere fact that the court had held a
painter's
scaffold to
belong
to
Class
(A),
would not have indicated that the
process might
not have
gone
on further.
Now,
if
(4)
had been decided as
suggested,
what would the ma-
jority
have done? If I am
right
in
assuming
that
they
desired to reach
the result
they did,
they
would
certainly
have imitated the
Caliph
Omar
at least to the extent of
performing
the
tawaf,
and
marching
seven
times around the situation.
Perhaps
then
they
would have
resignedly
kissed the fetish and reached what
they thought
an
unjust
result.
Or,
perhaps-who
knows
?-they might
have fled as far from the Ka'ba and
Mecca as
they
could. This sort of a
Hegira
is
easy enough.
All
they
would need to do is to decide that a Buick is in Class
(A)-an
ob-
viously dangerous instrumentality-and
the assumed decision in
(4)
is
successfully
circumvented and the fetish remains unkissed.
But,
if we look at the
majority opinion again,
we must admit that
they
do not even assert that
they
are
following (1).
In
fact, Judge
Cardozo admits that
(1) may
have been limited to
(A).
"W hatever
the rule in Thomas v.
W inchesterl8
may
once have
been,
it has no
longer
that restricted
meaning."19
In other
words,
even if the law is that the
process
of
generalization
in
(1)
is not to
go beyond (A),
that law was
changed.
But
just
how is such a result effected on the
principle
of
stare decisis?
Assuming
that
(4)
carried the
generalization
from
(A),
where
(1)
left
it,
to
(B),
what
power
had the court to do
so,
if
(1) implied
that it was to
stop
at
(A)
? In that case
(4)
has over-
ruled
(1),
and there is
nothing
that need
stop
the Buick case from over-
ruling (4).
But
really Judge
Cardozo is not
basing
his decision on
any
asser-
tion that
(4)
has overruled
(1).
He examines
(4), (5)
and
(6)
and
believes that
they
can be much more
readily
classified under
(B)
than
(A), which, despite
the
minority,
I think must be conceded. He sees
no
negative
decision which
expressly stops
at
(A).
He is satisfied that
modern conditions need this
particular decision,
and that the
general
opinion
of courts and
judges
in
1916,
when the Buick case was
decided,
would
approve
of
making
the manufacturers liable. All these condi-
tions
together
create the law for him and not an auto-limitation of
(1),
so of its own momentum it will travel to
(B)
and
go
no further.
Judge
Bartlett who would like it to
stop
at
(A),
to do him
justice,
has also
more
practical
and realistic
grounds
for his belief than
any
such auto-
limitation.
18
Supra note 12.
19
Supra
note
9,
at
387,
111 N. E. at 1052.
208
CASE LAW AND STARE DECISIS
Indeed,
we must observe that
although Judge
Cardozo said he
would not
go
as far as
(C),
there is
nothing really
to
prevent
the next
court from
doing
so. He
spoke,
in
fact,
of a "trend" of decision and
trends do not
stop abruptly
or
by
conscious limitation.
I think we can see from this how hard it
really
is to "follow" a
precedent.
W e have
experimented,
not in
corpore
vili but in
corpore
valde
pretioso,
as
every
decision of Cardozo is. The
single
instance is
capable
of
generalization,
and the
generalization
will not
stop
at
any
particular place,
unless
by
a
negative
decision,
by
a statement that a
given
situation is outside the
genus,
a
subsequent
court has deliberately
attempted
to
stop
it. Then the
process begins
all over
again,
because
the excluded situation is itself
capable
of successive
generalizations
and
we must know whether a
large
or a small
genus
is to be excluded from
(A).
A Buick car is not in
(A).
Is an automobile truck? An elec-
tric machine ? A
hypothetical
new
type
of car driven
by
more
explosive
mixtures than
gasoline,
and so on?
From what has been
said,
our
original
assertion that the rule of
stare decisis in its strict form assumes a
single precedent
and no
more,
needs revision. A
single precedent,
however
binding,
is
merely
the
initiation of a
process
of
generalization.
If it is a
negative
decision,
if it decides that situation
(1)
is not in class
(B),
it bars class
(B),
but leaves room for much
generalization
outside of it. If it is affirma-
tive,
if it decides that
(1)
is in class
(B),
it needs another decision to
stop
the
generalization
at
(C)
or
(D)
or
(E).
W e have been
going
on the
assumption
that if
(4)
had been
nega-
tively
decided,
the
majority
would have
yielded
to
Judge
Bartlett and
decided in favor of the Buick
Company.
If
they
had,
it would doubt-
less be said that
they
had allowed
legal
dialectic to overcome their sense
of
reality.
Or
better,
they
would have allowed one
type
of
reality-
since the existence and
psychological
effect of dialectic on a technical
profession
is a
reality-to
overcome other
realities,
those which relate
to current
non-professional
social and business activities. It
is,
to
say
the
least, unlikely
that
they
would have done
so,
and it is
likely
that
they
would have
evaded, distinguished, sterilized,
or
perhaps
overruled,
the
hypothetical
decision.
Modern
lawyers
and
judges,
it is
hoped,
do not
enjoy moving
exclusively
in the attenuated
atmosphere
of dialectic. And the factor
that most
readily
enables them to deal with their dialectical task-after
they
have
accomplished
their
practical
one-is
something
so far disre-
garded,
the
"opinion."
Llewellyn
has made
especially
clear the functions of the
opinion,
209
COLUMBIA LAW REVIEW
including
the
dictum,
throughout
his book.20 The confusion of the
opinion
with the decision is an inveterate
one,
particularly
with
students,
and is in terms at least not unknown to
judges
themselves.
It is often said that the
opinion gives
the "reason" for the de-
cision. In the vast
majority
of
cases,
it does not
really
do
that, but,
as
in the instance of the Buick
case,
it is a brief
essay,
or series of
essays,
on
points
of law. These
essays,
to be
sure,
are
rarely
as
good
as
Judge
Cardozo's. In most instances
they
owe their existence to similar
essays
presented
in the
contending
briefs.
They
are sometimes
quite long
and
frequently
excellent in
every way.
But there
ought
to be no
ques-
tion that it is not the
opinion
that is
binding.
The rule is stare
decisis,
not stare
opinionibus
or even stare
responsis.
Not
only
has it been
unqualifiedly
held that it is the decision itself
which must be followed and not the
opinion,
but the whole
technique
of
applying
the rule of
precedent
demonstrates it.
Opinions
are not
legally required
in most
states, and,
in
these,
a decision without an
opinion
is none the less
binding.
The
opinion may
not
logically
lead to
the decision at all. There
may
be other and better reasons for the de-
cision than those in the
opinion.
There
may
be several different and
even
contradictory opinions.
In all these
situations,
the decision is as
"binding"
as it was before.
W hatever the
opinions
do,
they
do not add to the
binding
force of
the decision. But
evidently they
have a force of their own. And that
force is
quite correctly
and
aptly
described
by
the word
"authority."
These little
essays
on the law
possess authority
in various de-
grees. They
derive it from the
personality
and character of the
judge,
from the
standing
of the
tribunal,
from the inherent
qualities
of the
opinion.
But to
yield
to this
authority
or to resist
it,
is neither to fol-
low nor to
depart
from the rule of stare decisis. The
position
of the
opinion
is almost
exactly
that of the doctrine of Continental
jurispru-
dence.
Lawyers
and
judges
read and
perpend,
but whether
they
will
be moved to act in accordance with the doctrine
they
are
receiving,
de-
pends
on a number of factors of which the
general authority
of the
opinion
is
only
one. It
may
be said that all
opinions
have no more than
"persuasive" force.
They can,
in the nature of the
case,
have no more.
Our "doctrine" is scattered
through
the
pages
of thousands of re-
ports
instead of
being
concentrated in text
books,
but so is a
great
deal
of the "doctrine" of French
courts,
where the notes
by distinguished
jurists
in the
pages
of
Dalloz, Sirey
or the Gazette dnu
Palais, enjoy
a
real
authority.
The doctrinal discussions in the
many
German
legal
20
And
particularly
in
I,
14
ff.; II,
47 ff.
210
CASE LAW AND STARE DECISIS
periodicals
are studied
by
all German
lawyers.
W e have
merely
taken
the comment on the decision from the footnote into the text and have
put
it into the mouth of the
judge
himself. W e have not transformed
its vis essentialis into
anything
better than
authority,
but we
have,
it
must be
admitted,
enormously
enhanced that
authority.
And
there,
of
course,
is the nub of the matter. In
spite
of what
ought by
this time to be the cornerstone of our
legal concepts,
we still
speak
of law as
being
in books or not
being
in books. W e still hear it as-
serted that "the law" is this or that formulated doctrine. W e know
better in
practice.
Law books and
living
habits of
communities,
form-
ulas and
theories,
common
opinions
and
general notions,
are
possible
sources of
law,
but law
essentially
is an
expectation.
It is a
conjecture
of what a court would
do,-a particular, concrete,
now
existing
court.
It is the law that the minimum
wage
statute of the District of Columbia
violates the Fifth Amendment of the
Constitution,
not because the
Supreme
Court said so in Adkins v. Children's
Hospital,21
but because it
is
likely they
will
say
so
again, although
it is
commonly
believed that a
majority
of the
present
court think otherwise.
W e owe this
understanding particularly
to Holmes and if we
slip
back into the
phrases
of the scholasticism from which his
genius
should
have freed
us,
we
ought
to do it
only
in words and without
blurring
our realization of the facts.
Since, therefore,
our law is what courts will
decide,
it is evident that we must base our
prophecies
on our
knowledge
of the court. If French or German
judges
were doctrinal
authorities,
could
anyone help estimating
their decisions on the basis of the doctrines
they
had
professed
to be theirs? W hen both M.
Aubry
and M. Rau sat
on the Cour de
Cassation,
was it not
fairly
evident that the Cours de
droit civil
franfais d'apres
la
tmethode
de Zacharie was
earnestly
studied
by
men who had never been at
Strasbourg?
So,
if we have a little
essay by Judge
Smith,
concurred in
by
his
colleagues,
on the law of
personal injuries
or the
obligation
of an in-
dorser,
we are
certainly neglecting
an
important
source of
information,
if we do not read it
carefully,
when we are asked what the law on that
question
is,
in a
jurisdiction
in which
Judge
Smith will make the law.
And,
if
Judge
Smith is
long
dead,
but it is certain that his successor
will read Smith's
opinion,
we had better read it too.
The fact that in order to learn what our law
is,
we must
study
the
opinions
is one
thing.
The rule of stare decisis is another. And the
fact that
courts,
as well as
lawyers
and writers on
law,
have confused
these two
things
is also an
important
fact. The ideas could
easily
be
m 261 U. S. 525,
43
Sup.
Ct. 394
(1923).
211
COLUMBIA LAW REVIEW
kept separate.
As
applied
in the United
States,
the rule of stare decisis
is a matter of
technique.
In whatever
way
courts reach their
conclusion,
they
are
expected
to
place
the situation
they
are
judging
within the
generalized
class of some
existing
decision. In
doing
so,
they may,
if
they choose, disregard
the
opinion-essay
of that decision
entirely.
If this were
not,
to a
large
extent,
merely
a
technique
of
presenta-
tion,
if the
judicial process
were not what
Judge
Cardozo has shown
it to be in his classic little
book,22
if we did not
possess
the devices
pre-
viously
set
forth,
this
might
be a
Priijudizienkult,.
a cult of
precedents.
the control of
living
realities
by
the casual acts of men
long
since (lead.
But,
as
Llewellyn
has
particularly
shown,
it need not be so and is not so
in fact.
Still less is American
preoccupation
with
"cases,"
i.e.
opinions,
such
a control. It is
simply
a statement of the fact that in order to estimate
the
probable
action of a
court,
it is well to read the books which the
court will read and will
study,
and to
refute,
if we
can,
whatever we
find in those books that runs counter to what we wish the law to
be,-or,
generally,
to have been.
Reading
these books will be far indeed from
making
our
prophecies
of court
action,
our
knowledge
of the
law,
cer-
tain. But it will
help.
And
certainly reading Llewellyn's
book will
help
to make us un-
derstand how our
system
functions.
MAX RADIN
UNIVERSITY OF CALIFORNIA
SCHOOL OF
JURISPRUDENCE
22
THE NATURE OF THE
JUDICIAL
PROCESS
(1925).
212