Judges create the rules they apply rather than applying preexisting rules.

Evidence

To make this determination, the judge not only decides the case but also devises the legal rule by which the decision is justified. Assuming that the judge ruled in favor of the flag burner, the opinion would announce a legal rule that reconciled the ruling with previous decisions protecting expressive conduct. It would also explain why the present case differed from those in which the Court had ruled against First Amendment claims. Put differently, whereas the deductive model suggests that judges decide by applying known rules to diverse facts, Levi insists that “the rules arise out of a process which, while comparing fact situations, creates the rules and then applies them.”! — G. Alan Tarr, Judicial Process and Judicial…, 2526

Categorization

• DEFINE: Contrasts the deductive model (rules precede cases) with Levi’s generative model (rules emerge from fact comparison) — the textbook’s central definitional distinction between formalism and realism.
• XREF: Directly contradicts the mechanical jurisprudence / legal formalism the course covers earlier in its ‘major traditions of American legal thought.’