How do judges decide hard cases?

The discretion thesis asserts that judges decide hard cases by making new law. Construed as a claim about all possible legal systems, the discretion thesis is inconsistent with the pedigree thesis.

Does a judge make or apply the law?

Judge-made law – known as common law – is law that has developed from judgments handed down in court. When using common law judges decide cases along the lines of earlier decisions made in similar cases (‘precedents’).

What is it called when a judge decides a case?

judgment – The official decision of a court finally determining the respective rights and claims of the parties to a suit. jurisdiction – (1) The legal authority of a court to hear and decide a case.

Do judges have discretion in hard cases?

A judge does not decide a case in a legal vacuum but on the basis of existing rules, which express, and, at the same time, are informed by, underlying legal principles. The task of the judge faced with a hard case is, therefore, to understand what decision is required by the whole doctrinal structure of existing law.

What is Dworkin theory of law?

Dworkin’s theory is “interpretive”: the law is whatever follows from a constructive interpretation of the institutional history of the legal system. Dworkin argues that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if one’s principles are skewed enough.

Do judges have to follow the law?

Although judges should be independent, they must comply with the law and should comply with this Code. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances.

What does judge made law mean?

The common-law system of creating precedents is sometimes called stare decisis (literally, “to stand by decided matters”). This system of stare decisis is sometimes referred to as “judge-made law,” as the law (the precedent) is created by the judge, not by a legislature.

Who decides if a case goes to trial?

the judge
In a trial, the judge — the impartial person in charge of the trial — decides what evidence can be shown to the jury. A judge is similar to a referee in a game, they are not there to play for one side or the other but to make sure the entire process is played fairly.

What is relevant case law?

Case law is specific to the jurisdiction in which it was rendered. Still, if there is no precedent in the home state, relevant case law from another state may be considered by the court. Rulings made by federal appellate courts, and the U.S. Supreme Court, however, are binding on state courts.

Do judges make new law?

Presently a judge’s role is not to make law but to uphold the laws which are made by the parliament. Each law which is made by the parliament must be clearly defined and applied by the judges in accordance with the cases.

Are judicial decisions law?

Common law consists of decisions by courts (judicial decisions) that do not involve interpretation of statutes, regulations, treaties, or the Constitution. Courts make such interpretations, but many cases are decided where there is no statutory or other codified law or regulation to be interpreted.

What is a hard case Hart?

In hard cases, Hart contends the judge has full discretion to rule in any manner not in conflict with other more primary sources of law, in virtue of being recognized as a valid source of law.

How do judges make economic decisions?

When judges rule on cases involving issues such as contracts, property rights, antitrust or taxes, they are not just making legal decisions. They are making economic policy. Thus, as Professor Matthew Stephenson ’03 asserts, it is in the interest of those who study economics to consider how those decisions are made.

Is there an alternative theory of judicial decision-making?

This movement, he writes, provides an alternative to the two common theories on judicial decision-making: Formalism, which holds that legal questions have a “right answer” based on canonical legal materials, and Skepticism, which says that judges use the laws available to justify the outcomes they desire.

Why is it important to study how judges interpret legal documents?

“Judges often have a great deal of discretion when they interpret legal documents, and therefore understanding their decision-making processes is important to understanding economic outcomes.” Matthew Stephenson joined the Harvard Law faculty in 2004, a year after graduating from the school.

What is the judicial Hunch in law?

judges’ decisions are not based on a systematic analysis of fact and law, but rather on a perspicacious flash termed the “judicial hunch.”6 The transpiration of the judicial hunch was defined by Judge Hutcheson as the following: [A]nd brooding over the cause, [the judge] waits for the feeling, the hunch – that