Implicit negotiation between courts and legislatures shapes common law even absent statute

Evidence

State legislatures may affect the course of the common law even without legislating. After all, the potential for legislative intervention may itself act as a constraint on judicial decisions. Still, it would be a mistake to view the relations between state courts and legislators as simply conflictual. Most judicial decisions interpreting the common law provoke no response from legislators. Judicial decisions and legislative responses or non-responses can be viewed as a form of implicit negotiation, through which judges and legislators both seek to leave their mark on the common law. — G. Alan Tarr, Judicial Process and Judicial…, 3539

Categorization

• XREF: Connects to the separation-of-powers and courts-lack-policy-dictating-power themes from ch8 and to legislative override of judge-made tort rules. — connects to: Conflicting sister-state precedents paradoxically fuel common-law change rather than stability — G. Alan Tarr, Judicial Process and Judicial…, 3534; Common law evolves incrementally and its influence across states rests on persuasion. — G. Alan Tarr, Judicial Process and Judicial…, 1434; The common law adapts to social and economic change — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1311 (+8 more)
• SEED: The ‘implicit negotiation’ frame between judges and legislators is a usable lens for a piece on how threatening-to-overrule affects common-law doctrine without any statute ever passing.

Broader Connections

• The common law approach to statutory interpretation has many shades and variants, which license varying degrees of judicial freedom in interpretation; but a central or defining idea is that judges… #expands (0.82)