Page:The Green Bag (1889–1914), Volume 21.pdf/276

 The

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THE PLETHORA OF CASE LAW OUR esteemed contemporary, the Central Law Journal, finds a "per plexing situation" in the superabun dance of reports of cases, and asks what can be done to reduce a plethora of case law which "ought not to exist to encumber a lawyer's shelves, nor to con fuse the public mind, nor to be a burden and an expense upon the taxpayer as well as the lawyer." To quote further:— "A number of suggestions have been made. Some have suggested codification of all laws. Codification, however, has proven a disap pointment in many cases, because of its unbending rigidity. Others have suggested that courts be forbidden to write opinions at all and that the rule of stare decisis be aban doned. This remedy is rather too harsh, and while it would probably be effectual as a surgical operation it should be resorted to only as a last resort. Some have suggested that the opinions of the Supreme Court of the United States be regarded as controlling on all questions of substantive law passed upon by that Court. This is not an impracticable suggestion but would meet with considerable opposition from those who are jealous of the growing ascendancy of federal power over state autonomy. "Mr. James Bryce, of England, in one of his notable contributions to the literature of the law, recommends, in lieu of codification, the enactment of the Roman precedent of giving to the works of certain jurists or text writers a certain degree of authority much after the manner of the Law of Citations of Valentinian, which gave to the works of Paulus, Ulpian, Papinian, Gaius and Modes-

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tinus quasi-statutory force. (Bryce's Studies in History and Jurisprudence, p. 685.) There is much to be commended in this idea. "We have no suggestion of our own to make at the present time although the subject has given us frequent occasion for deep meditation and consultation with the authori ties." Brevity is a quality not sufficiently cultivated in judicial decisions, prob ably for the reason that it is easier to elaborate a doctrine of law in one's own language than it is to turn immediately to a more succinct statement by a standard authority. Courts ought theo retically to avoid covering ground already covered, and when a citation will serve the purpose equally well they should not deliberately prefer extended discussion to a concise summary of controlling principles. Familiar constitutional pro visions need only be named, and it may be laid down as a general proposition that the shorter the opinion the greater its value. Complexity of case law is in a large measure artificial and the unfor tunate result of self-indulgent garrulity. Long-winded decisions by inferior courts are particularly to be discounte nanced. The soundness may even be questioned of the custom of permitting such courts to render anything more than a brief statement of the grounds of their judicial findings. Every judge should endeavor to measure accurately his relation to the judiciary system of