NCJ Number
56624
Journal
KENTUCKY LAW JORNAL Volume: 65 Issue: 3 Dated: (1976-1977) Pages: 631-655
Date Published
1977
Length
25 pages
Annotation
THE PROPER ROLE OF COURTS IN RELATION TO LEGISLATURES IN REFORM OF THE COMMON LAW IS DISCUSSED
Abstract
THE PROPER ROLE OF COURTS IN REFORM OF THE COMMON LAW HAS BEEN NEGLECTED BY LEGAL PHILOSOPHERS. THE CONFUSIONS INHERENT IN THE DOCTRINE OF STARE DECISIS (THE PROPER RELATIONSHIP BETWEEN CURRENT AND PAST JUDICIAL DECISIONS) HAVE GENERALLY PREVENTED COURTS FROM DEVELOPING A CLEALY ARTICULATED RATIONALE FOR THEIR ACTION OR INACTION IN REFORM OF THE COMMON LAW. IN PARTICULAR, THE DOCTRINE OF STARE DECISIS CONFUSES THE PRINCIPLE OF STABILITY WITH THE STANDARD OF LEGISLATIVE QUESTIONS. SUCH A CONFUSION IS NATURAL, FOR IF COURTS DECIDE THAT THE LAW SHOULD NOT BE CHANGED (PRINCIPLE OF STABILITY), CHANGE MUST EMANATE FROM THE LEGISLATURE (LEGISLATIVE QUESTION); HOWEVER, IF COURTS MAY ENGAGE IN PROSPECTIVE OVERRULING, THEN THE PRINCIPLE OF STABILITY PROVIDES NO STRONGER A REASON AGAINST JUDICIAL THAN AGAINST LEGISLATIVE CHANGE. THE STANDARD OF LEGISLATIVE QUESTIONS DOES PROVIDE BASIS FOR DISTINGUISHING RULES WHICH COURTS SHOULD NOT UNDERTAKE TO CHANGE FROM THOSE WHICH THEY MAY. IF THE CHANGE OF A RULE IS A LEGISLATIVE QUESTION, THEN COURTS ARE NOT QUALIFIED TO DETERMINE THE RELATIVE MERITS OF PROPOSED AND EXTANT RULES. CONSEQUENTLY, IT IS INAPPROPRIATE FOR COURTS TO DECLARE THAT ALTHOUGH A PARTICULAR COMMON LAW RULE SHOULD BE CHANGED, IT IS A LEGISLATIVE QUESTION. THE PROPER ROLE OF COURTS OF FINAL REVIEW IN REFORM OF THE COMMON LAW IS GREATER THAN MOST COURTS APPARENTLY REALIZE. IF THE STANDARD OF LEGISLATIVE QUESTIONS IS APPLIED REALISTICALLY, FEW ISSUES OF CHANGE OF THE COMMON LAW WILL BE LEGISLATIVE QUESTIONS. IF THE COMMON LAW IS OBTUSE AND INADEQUATE FOR SOCIAL CONDITIONS, THEN THE BLAME FREQUENTLY MUST BE PLACED UPON THE INABILITY OR MISCONDUCT OF CONTEMPORARY JUDGES. LEGAL PHILOSOPHERS CANNOT REFORM THE LAW, BUT THEY MAY HELP BY SORTING OUT THE DISTINCT CONSIDERATIONS INVOLVED IN DECIDING TO OVERRULE PRECEDENT. JUDICIAL ACTIVISM IN COMMON LAW REFORM WILL BENEFIT THE PUBLIC AT LARGE. (AUTHOR ABSTRACT MODIFIED---RCB)