Thursday, April 28, 2016

Judges Can And Should Make Law

Another miscarriage of justice has just occurred. I believe this wrong is rooted in attacks on our judicial system by the idea that "judges can't and shouldn't make law."

n March, 2016 an Oklahoma appeals court decided that state law doesn’t criminalize oral sex with a victim who is completely unconscious. The decision was based on statutory law.*

Courts are charged with delivering justice, the Oklahoma court didn't do so, apparently in the belief that "judges can't make law."  

Some folks (mainly conservative) insist judges can’t and shouldn’t “make law.” The reason?  I believe it is because for much of the 20th century, judges made a lot of law protecting individuals, especially consumers, a development quite upsetting to many conservatives.

But the fact is that throughout our history, judges have made law in order to do justice. ** (See, e.g., my blog entries linked below.)

The Oklahoma appeals court decision is an example of how this “judge’s can’t make law" idea has perverted justice in the US 

Per articles about the case, legal experts and victims’ advocates said they view the ruling as showing the gaps that exist between the nation’s patchwork of laws and evolving ideas about rape and consent.
. . . .

“And the appeals court ruling, on 24 March, affirmed that prosecutors could not apply the law to a victim who was incapacitated by alcohol.” ***

"Michelle Anderson, the dean of the CUNY School of Law who has written extensively about rape law, called the ruling “appropriate” but the law “archaic”.
“This is a call for the legislature to change the statute...."  Op cit.

That idea ignores the history of US law and of our legal system. This case is a clarion call for the courts to remember they are judges and have the power and responsibility to do justice - including "making law."

The idea that judges shouldn't make law and only legislatures can make law seems to be a relatively modern (mid to late 20th century) renewal of a political conservative idea which I believe arose because conservatives didn't like courts favoring people and justice as they often did throughout the 20th century, often merrily making law along the way. Lawyers, think MacPherson.  (Note that conservatives are perfectly fine with “activist judges making law favoring corporate adventurism.)

The fact is that throughout our history, judges have made law, often in order to simply do justice.

And this 
Oklahoma case and the reaction to it demonstrate why slavish adherence to legislative action doesn't do justice, it perverts justice.  

(It should remind of us the early period in English legal history when, if I recall correctly) the courts became mired in technicalities to the detriment of actual justice and the courts of equity arose to provide a degree of correction and an avenue to actual justice.)

One reason courts should make law is well-illustrated by Dean Anderson as quoted above: legislatures are often slow to act, and, not infrequently, important and necessary changes in our law can be blocked by even one powerful legislator.

The power to promote justice rests in the hands of those who make the laws. Insisting that such power rests only in the hands of legislatures doesn't 
promote justice, at times it frustrates it.

BTW: Two things to keep in mind with regard to judges "making law":

1: Legislatures can always over-rule "court made law" (with the exception of constitutional law.)

2:  Judges don't like to be over-ruled; they will hesitate long and hard before taking the chance of making law and then being over-ruled.

My earlier discussions on "judicial activism:"


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**Legal scholars: if you don't think judges have made law throughout our history, aside from the actual history of our common law legal system, please consider why our library of legal authorities include an extensive collection of the ALI's Restatements of the Law - seeking to explain and rationalize much of the law courts have made in the US throughout our history.

And try to explain why the "codification movement" didn't take place until well after our Constitution was adopted.  See, e.g.,

The codification movement and the Fields Code are also discussed in Grant Gilmore's "Ages of American Law."

And finally, if courts can't make law, there would be no reason for ethical Rule 3.1: "Meritorious Claims & Contentions

"Rule 3.1 Meritorious Claims And Contentions
"A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law..... 

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