Page:The Green Bag (1889–1914), Volume 17.pdf/193

 i78

THE GREEN BAG

the court is right; the recognition in the com mon law system of the force and effect of pre cedents renders it necessary that a court whose decisions are to be given weight as precedents shall announce, not for the satisfaction of the parties concerned in the case, but for the guid ance of those whose business it is to know and apply the law, and with as great definiteness as practicable, the exact rule of law which is applied in the case, in order that its scope and limitations, as applicable to other sets of facts in some respects analogous, may be under stood." The practice of giving reason for their opin ion has been peculiar to English law from its earliest stages, "and the American practice of announcing dissenting opinions is merely the survival of the English practice by which each judge expressed his views of the questions involved in the case." In conclusion he says:— "The real problem in the application of a precedent is to determine what effect will be given to it in the decision of other cases to some extent analogous, but not identical, and for this purpose a dissenting opinion is often of as much value as the majority opinion, for it helps by contrast to make distinct the limitations which are likely to be recognized to the general statement of a rule of law by the majority. The writing of dissenting opinions has in many cases, no doubt, been un wise and injudicious. There is, perhaps, even greater danger of over-elaborating a dissent than an opinion which expresses the views of the court." The author concludes that:— "First, where the difference of view in the court is as to questions of fact, there should, in general, be no dissent whatever. The con clusion reached by the majority as to what facts are established ought to be announced without qualification as to the conclusion of the court, for such conclusion can be of no interest save to the parties concerned. Second, the mere announcement of a dissent without any reason assigned for it, or any opinion pointing out the particular ques tion as to which the dissenter has disagreed from the majority, is of no advantage to any one unless the views presented in the majorityopinion relate to a concrete question, so that

the announcement of a dissent sufficiently in dicates the views of the dissenters. Third, the writer of the dissenting opinion should confine himself to a brief statement of the particular questions as to which the opinion of the majority is unsatisfactory. It is doubt ful if in any case an elaboration of argument, illustration and authority will strengthen the opposition to the prevailing opinion. The writer of the dissent has a decided advantage in that his work is in the main critical and destructive rather than constructive. The advantage which the dissenter has in stating his views against the majority ex plains perhaps the conspicuous fact that as a rule the dissenting opinion seems more reason able and cogent than the majority opinion in cases where a dissent is written. The critic may select his point of attack and need not make a consistent exposition of either the law or the facts of the case. Dissenting opinions should, therefore, be read with caution lest a merely plausible argument, based on partial views of the law or facts, shall be allowed to lead the mind away from a fair consideration, in all its bearings, of the case which was before the court for its decision." THE address of V. H. Roberts before the New York Bar Association on "Dissenting Opinions" is printed in the American Laur Review of January (V. 39, p. 23). It is en tirely in accord with the views of Judge McClain. PROCEDURE (New Trials. Exceptions)

"THE Abuse of New Trials" is the subject of a brief article by Everett P. Wheeler in the February Michigan Law Review (V. 3, p. 257). The author pleads for the application to the common law of the equity and admiralty practice of sending up the whole case on appeal for a decision on the merits. He ob serves that this was originally the theory of the common law. "The object of the common law system of pleading was to spread the case of the parties upon the record as fully as possible. The purpose of the plea, the replication, the re butter, and all the other pleadings was to present upon the record a single issue to be