and retesting, there is a
constant rejection of the
dross, and a constant
retention of whatever is
pure and sound and fine. (114-115).
As the law develops, mistakes are effaced and
How Precedent Should Evolve
Michael Gerhardt writes more recently that
while we should break with some particular
precedents for good reason, we can never
break away from precedent (Gerhardt 203).
Precedent continues to be the lifeblood
of our legal system, but we must recognize
the need for change and evolution.
Understanding precedent involves judicial
modesty and recognition that we are
“historically, socially, and culturally bound”
(Id.). Precedent is most meaningful when
it finds continued public support through
well-reasoned and candid opinions. If courts
focus too much on the past, the common
law becomes less relevant and takes a back
seat to legislatures eager to orient the future
(Wistrich 820– 25).
It is argued that the roles of the courts,
common law, and precedent are diminish-
ing. “Courts are in a competition with other
lawmakers, and they are not faring well”
(816). Fewer cases are litigated through trial
and appellate courts, and we are losing the
beneficial process the courts provide. We
adopt trial avoidance rules, and litigation
costs soar. The working class today can no
better afford attorneys than could those liv-
ing in Victorian England. At the same time
we see burgeoning legislative and adminis-
Legislatures who perceive their role as
forward-looking take away the ability and
insight only the judiciary can give through
studied determination of individual cases
over time. Codification by legislatures
entrenches the law and takes away the
unique ability the courts have to consider
individuality and adjust incrementally. This
is a unique advantage that courts have over
legislative rules. Otherwise, today’s legislation becomes tomorrow’s chains, because
the law loses the ability to progress through
pragmatic correction. Legislation and
administrative law are rigid, and courts do
little more than decipher legislative enactments and “administer the system.” There is
tension here. But, coupled with modesty
gained through an examination of precedent, courts need the courage to be flexible
and assert their unique role in developing
law. The public needs confidence in our
judiciary’s ability and willingness to do so.
What, then, of Dickens? He matures our
recognition that the rule of law evolves and is
not premised on absolute truths. We better
understand precedent’s important role but
also that there is more wisdom than in prece-
dent. There is more wisdom than impenetra-
ble and inflexible procedures and laws,
whether created by courts or legislatures as
they purport to settle things eternally. Bleak
House has survived over 150 years—not
many judicial precedents or laws have had
such a long shelf life. In reading Dickens, we
can better understand our profession as we
encounter the profound moments of human
lives and motivation that he mirrors. Dickens
offers us lessons in human nature and judicial
power. He gives us time for quiet introspec-
tion, page by page. He is an ally when advo-
cating change and recognizing error, and
Bleak House serves as a must-needed check
All references to Bleak House are to the Penguin Classic Edition published in 1996.
• MICHAEL ALLEN, CHARLES DICKENS’ CHILDHOOD. New York: St. Martin’s Press,
• BLACK’S LAW DICTIONARY. St. Paul, Minn.: West, 5th ed., 1979.
• BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS. New Haven:
Yale University Press, 1921.
• JOHNF. DILLON, THELAWS ANDJURISPRUDENCE OFENGLAND ANDAMERICA.
Boston: Little, Brown, 1984.
• JOHN FORSTER, LIFE OF CHARLES DICKENS. London: Dent, 1966.
• MICHAEL GERHARDT, THE POWER OF PRECEDENT. New York: Oxford University
• WILLIAM HOLDSWORTH, CHARLES DICKENS AS A LEGAL HISTORIAN. New Haven:
Yale University Press, 1929.
• JOWITT’S DICTIONARY OF ENGLISH LAW, London: Sweet & Maxwell Limited,
2d ed., 1977.
• BRIAN WATSON, LITIGATION LIABILITIES. Palladian Law Publishing, 2002.
• Andrew Wistrich, The Evolving Temporality of Lawmaking, 44 CONN. L. REV. 737
1. “At the age of 15 he was in the office of
Charles Malloy, an attorney of 6 Symond’s
Inn, and afterwards in the office of Ellis
and Blackmore, attorneys of Raymond
Buildings, Gray’s Inn. Dickens had been a
reporter in the Doctors’ Commons and in
Lord Chancellor Lyndhurst’s Court at the
age of 18; and in 1844 he had been the
victorious plaintiff in five Chancery suits
against certain publishers who pirated The
Christmas Carol ” (Holdworth 19).
2. The Court of Chancery was established as
a court of equity and originated in petitions
to the king when the law courts failed to
provide an “adequate remedy at law.” Early
chancellors established their own rules, procedures and precedent. Certain distinction
remains today between legal remedies and
equitable remedies, including that an equitable remedy is decided by the court, not
by a jury. See DAN B. DOBBS, LAW OF
REMEDIES (West 1993) § 2. 1 et seq.
3. From Black’s Law Dictionary: “Stare decisis. Lat. To abide by, or adhere to, decided
cases. Policy of courts to stand by precedent and not to disturb settled point.”
Another term closely related is Stare decisis
et non quieta movera: “To adhere to precedents, and not to unsettle things which are
Dickens and Lessons From the Chancery Court
forth in these
the Court of
Chancery is sub-
and within the