trusted to the judgment of some inferior court.[1] In his case, the chance of miscalculation is felt to be a fair risk of the game of life, not different in degree from the risk of any other misconception of right or duty. He knows that he has taken a chance, which caution often might have avoided. The judgment of a court of final appeal is felt to stand upon a different basis. I am not sure that any adequate distinction is to be drawn between a change of ruling in respect of the validity of a statute and a change of ruling in respect of the meaning of operation of a statute,[2] or even in respect of the meaning or operation of a rule of common law.[3] Where the line of division will some day be located, I will make no attempt to say. I feel assured, however, that its location, wherever it shall be, will be governed, not by metaphysical conceptions of the nature of judge-made law, nor by the fetich of some implacable tenet, such as that of the division of
- ↑ Evans v. Supreme Council, 223 N. Y. 497, 503.
- ↑ Douglass v. County of Pike, 101 U. S. 677.
- ↑ Cf. Wigmore, "The Judicial Function," Preface to 9 Modern Legal Philosophy Series, pp. xxxvii, xxxviii.
