Courts, not legislatures, are responsible for molding remedial law when statutes fall silent.
Evidence
To what lengths of intellectual nonsense will courts go to pass the buck to the legislature and avoid taking an open and honest responsibility of their own for the growth of the law? … Is it not plain that the problem, at least in the absence of express treatment by the legislature, is essentially one of remedial policy making by the courts? The legislature fixes primary policy when it declares certain conduct to be forbidden. The court has then to decide whether, consistently with the general law of remedies and its underlying principles and policies, a civil remedy should be provided or should not be. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1368
Categorization
- DEFINE: Distinguishes the legislature’s fixing of primary policy from the court’s remedial-policy making — a core legal-process distinction.
- XREF: connects to: Specifying one civil remedy need not foreclose other civil remedies. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1373; Statutes serve courts as analogies and points of departure, not controlling rules — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1398; Courts may revise common-law rules even where legislatures have failed to act — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 2368 (+6 more)
Broader Connections
- Courts may not amend a statute however desirable policy change may be
#qualifies(0.82) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1059 - Statutes serve courts as analogies and points of departure, not controlling rules
#complicates(0.80) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1398 - Remedial doctrine is historically made by tribunals, not by custom or general understanding
#corroborates(0.80) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1664 - Courts make law only as a byproduct of their adjudicative function
#qualifies(0.78) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 15 - Courts may revise common-law rules even where legislatures have failed to act
#expands(0.75) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 2368 - Courts do make law even though formal theory denies them that power
#corroborates(0.75) — Lawrence M. Friedman and Grant M. Hayden, American Law, 439 - Respect for precedent keeps courts from reversing failed policies.
#qualifies(0.75) — G. Alan Tarr, Judicial Process and Judicial…, 1482 - Implicit negotiation between courts and legislatures shapes common law even absent statute
#corroborates(0.74) — G. Alan Tarr, Judicial Process and Judicial…, 3539