Judges create law through choice that constraints channel but never eliminate

Evidence

Law may be uncertain for several reasons. The language of the law may be vague or general, either by design or because of poor draftsmanship. The aims of those who enacted the law may be unclear. The situation in the case may not have been contemplated by those who enacted the law, and so on. But whatever the reason, judges must “say what the law is” to decide cases.”° And if a case arises because the law is unclear, then judges must choose between the competing understandings of the law and of how it applies that are offered by the attorneys arguing the case. In making this choice, judges are not simply substituting certainty for uncertainty, clarity for obscurity. They are, in a very real sense, creating the law. … Of course, judges are not free to give whatever interpretation they wish to the law, to decide cases however they choose. Judges operate within legal and political constraints. For example, all judges take an oath to decide cases in accordance with the law and have been trained as to how to ascertain its meaning. Even before their elevation to the bench, they are socialized through years of legal training and experience as to the proper behavior for a judge. They also are influenced by the expectations of colleagues and lawyers. These factors affect the range of discretion judges exercise and the constraints they feel. Ultimately, however, judicial choice is channeled rather than eliminated. Because the law may be uncertain or unclear, a judicial commitment to decide cases according to the law does not eliminate judicial choice. — G. Alan Tarr, Judicial Process and Judicial…, 196

Categorization

  • DEFINE: Introduces the core doctrinal proposition distinguishing legal realism/indeterminacy from mechanical jurisprudence — central to a jurisprudence course.
  • XREF: connects to: Judges create law when forced to choose among competing interpretations. — G. Alan Tarr, Judicial Process and Judicial…, 196; Judicial decisions blend clear-law obedience with attitude-driven choice in ambiguous cases — G. Alan Tarr, Judicial Process and Judicial…, 1365; Judges create and reshape legal rules by reasoning analogically across cases, not by deduction — G. Alan Tarr, Judicial Process and Judicial…, 2542 (+10 more)

Broader Connections