Judges create law when forced to resolve statutory ambiguity.

Evidence

The 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, when called upon, must “say what the law is.” And if the litigation arises because the law is unclear, then judges must choose between the competing understandings of the law and how it applies that are offered by the attorneys arguing the case. In making this choice, judges are doing more than merely substituting certainty for uncertainty, clarity for obscurity. They are, in a very real sense, creating the law. — G. Alan Tarr, Judicial Process and Judicial…, 187

The 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, when called upon, must “say what the law is.” And if the litigation arises because the law is unclear, then judges must choose between the competing understandings of the law and how it applies that are offered by the attorneys arguing the case. In making this choice, judges are doing more than merely substituting certainty for uncertainty, clarity for obscurity. They are, in a very real sense, creating the law. — G. Alan Tarr, Judicial Process and Judicial…, 187

Categorization

• DEEPTHINKING: Central thesis of the book and the course — judges make law because meaning is indeterminate.
• XREF: The heart of the legal interpretation tradition; connects to Hart and legal realism debates. — connects to: Judicial discretion is channeled by constraints, not eliminated. — G. Alan Tarr, Judicial Process and Judicial…, 188; Most court cases are resolved mechanically by settled law — G. Alan Tarr, Judicial Process and Judicial…, 1254; The law rarely dictates outcomes, so judges’ political views decide most cases. — G. Alan Tarr, Judicial Process and Judicial…, 1283 (+14 more)
• corroborated: 2 independent passages support this claim — G. Alan Tarr, Judicial Process and Judicial…, 187

Broader Connections

• Legal uncertainty creates disputes, litigation, and judicial discretion #expands (0.80) — G. Alan Tarr, Judicial Process and Judicial…, 214
• A legal principle emerges from a long line of decisions. #expands (0.75) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 134