Page:Harvard Law Review Volume 9.djvu/492

464 464 HARVARD LAW REVIEW, JUDICIAL CONFLICT. — MISTAKE IN BOUNDARY LINES. THE subject of the conflict of judicial opinion considered in its general features, apart from a discussion of any particular line of decisions, presents a field of inquiry to the student at once interesting and instructive. Is it the tendency of our modern systems of practice to increase or to lessen the chances that two courts of last resort will decide contrariwise? Do these conflicts recur with such frequency and in such circumstances as to suggest the possibility that perceptible causes are operating to bring them about? In other words, are they capable of being referred to a rule, however much that rule may lie open to exceptions? To seek to uncover and register with some degree of precision the various influences that are at work shaping the conclusions of the judicial mind, besides the force of legitimate argument ad- dressed to it at the bar, is to enter upon a hopeless task. The acutest judge himself would fail in the attempt. But it is by no means impossible to point out here and there signs of an active influence whose effect may be visibly traced, even if it can- not be reduced to exact terms. These motives, to be sure, are not unworthy, nor are they entertained consciously. Promptings do nevertheless exist that operate with more or less cogency, ranging as they do all the way from a personal bias to those prejudices of race, religion, or locality which an occupant of the bench shares with the community around him. The presence of such factors, subtle as they may be, does not escape the attention of the experienced practitioner. Indeed, a capacity to detect their agency, and aptly to turn them to the advantage of his client, has much to do with a lawyer's success in the trial of causes. We are inclined to think that it ever remains a mystery to lay- men why there should be such frequent diversity of views among judges as to what the law really is.^ Clients are not altogether satisfied, nor are they much comforted, when, after a case is lost, 1 A curious instance where a case is twice decided, and decided differently, with no reference in the latter opinion to the former decision, is Elliot v. Stone, 12 Gushing, 174, and I Gray, 571.