IT IS a common experience with a teacher of law to find in every department of the subject a number of hard knots that have resisted all the efforts of the courts and jurists to split them. These usually take the form of a hopeless contrariety of decisions, or of decisions which are impeccable in their logic but offend against what we usually speak of as a sense of natural justice. It is customary for us to dismiss these with a statement that the majority of decisions or the weight of authority favors the one conclusion or the other, and that possibly the only way to remedy the difficulty is by an appeal to the legislature. There seems to be a larger number of these refractory knots piled up in the subject of Damages than in other courses, and this is an attempt to reduce their number. It has been somewhat surprising and not a little disconcerting to find that so many of them depend upon simple logical fallacies. If the wrong horn of a dilemma is originally taken by a supreme court, its decision becomes a precedent from which its successors have difficulty in escaping. As this solution seems to be so very easy, it is here presented with due diffidence, and with deprecation of the charge of contempt of court. It is simply the observation that in our never ending struggle to steer between the two categorical legal necessities, certainty and flexibility, the courts have inclined toward the former where, without the violation of any legal principle, they might well have turned to the latter.
Drake, Joseph H. "Rule of Law and the Legal Right." Mich. L. Rev. 19 (1921): 365-82.