Courts do make law even though formal theory denies them that power

Evidence

One classical and durable legal theory has always insisted that courts have no right or power to make new law. They can only “find” law, or at best apply old law to new situations. It is the legislatures that have the right to make law, boldly and openly. Indeed, this is their job: they “pass laws.” Yet students in law schools in the United States, or who study law and legal process as undergraduates, focus largely on the courts (including the way in which courts do make law, despite the theory). — Lawrence M. Friedman and Grant M. Hayden, American Law, 439

Categorization

• XREF: Sets up the interpretive-judgment material in ch31 and general legal-reasoning content the course builds on. — connects to: American lawmaking is fragmented across thousands of local special-purpose bodies, not just legislatures — Lawrence M. Friedman and Grant M. Hayden, American Law: An Introduction, 440; Courts make law only as a byproduct of their adjudicative function — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 15; Courts, not legislatures, are responsible for molding remedial law when statutes fall silent. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 1368 (+2 more)

Broader Connections

• Formalism disguises the need for judicial choice by freezing rule meaning #expands (0.95) — HLA Hart, The Concept of Law (Clarendon Law…, 370