Justiciability, 4 University Of Chicago Law Review 1 (1936)
It might be supposed that justiciability, the very foundation of the judicial function, would be a matter on which courts could hardly differ. Yet there seems to be the greatest confusion among the courts as to when an issue is and is not susceptible of judicial decision. This is largely due to a devotion to phrases and symbols which make historical investigation and theoretical analysis seem an unnecessary encroachment on the judicial prerogative. The very system of stare decisis invites courts to relieve themselves of the necessity of thinking through again ostensible propositions which seem to have once received the stamp of approval, and tempts them to extend their application to situations far different from those in which they arose. A habit of thought is thus cultivated which unwittingly makes courts slaves to stereotyped terms like "cause of action," "case" or "controversy," terms which are bandied about without adequate analysis. The temptation is not resisted because most appellate courts are continually overworked. But the resulting damage to the law and to the efficient administration of justice is not trifling, for it takes a fortunate concatenation of circumstances to pry a court loose from its erroneous grooves. In the dilemma of choosing between consistency and rightness, consistency often wins. In this psychological process the human unwillingness to admit error or the belief that higher courts will correct errors below, plays an integral part. Although the system of stare decisis postulates a system of trial by combat with a decision confined to the precise questions at issue, the fact is that judicial departures from conciseness sometimes produce legal disquisitions far beyond the necessities of the case, called obiter dicta, which, while often illuminating are as often unsound, but are invoked notwithstanding, whether right or wrong, wherever they seem to help in the process of advocacy or persuasion.
Date of Authorship for this Version
analysis, stare decisis, obiter dicta, litigation, lawsuit, constitution
Borchard, Edwin, "Justiciability" (1936). Faculty Scholarship Series. Paper 3468.
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