Judges create law when forced to choose among competing interpretations.

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. — G. Alan Tarr, Judicial Process and Judicial…, 196

Categorization

• DEEPTHINKING: The claim that choosing among interpretations ‘in a very real sense’ creates law, channeled by constraints rather than eliminated, is genuinely dense and paradigm-shifting for a legal-process course.
• XREF: connects to: Judicial discretion is constrained but never wholly eliminated. — G. Alan Tarr, Judicial Process and Judicial…, 198; Judges create legal rules by weighing case similarities, not by applying fixed rules — G. Alan Tarr, Judicial Process and Judicial…, 1263; Judges create and reshape legal rules by reasoning analogically across cases, not by deduction — G. Alan Tarr, Judicial Process and Judicial…, 2542 (+16 more)

Broader Connections

• Judges create and reshape legal rules by reasoning analogically across cases, not by deduction #expands (0.85) — G. Alan Tarr, Judicial Process and Judicial…, 2542
• Judges rely on personal values when competing legal principles are evenly balanced #expands (0.80) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 156
• Courts have the essential duty to interpret conflicting laws and constitutions #exemplifies (0.75) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 481