NCJ Number
96488
Journal
Journal of Law Reform Volume: 17 Issue: 1 Dated: (Fall 1983) Pages: 1-24
Date Published
1983
Length
24 pages
Annotation
The decisions of the United States Supreme Court represent judicial lawmaking under three models: lawmaking by example, lawmaking by general principles, and lawmaking by specific rules.
Abstract
Lawmaking by example is lawmaking in the adjudicative mode. Cases decided on a more or less ad hoc basis gradually come to indicate broad principles to guide future adjudication. The ruling is limited to the facts of the particular case or to a quite narrow class of cases with similar facts. In contrast, lawmaking by general principles starts with broad statements which seem to be all encompassing and which are narrowed as the court decides further cases arising under the principle. This approach allows the court to assert broad values and produces much of the open-endedness found in the adjudicative model. However, opinions that are excessively expansive provide little if any more guidance than do opinions which are excessively narrow. The third model, lawmaking by specific rules, most closely resembles lawmaking by a legislative body, where specific guidance is given regarding specific transactions. The Miranda and Miller decisions reflect this model, as do any opinion that states a specific test, usually one with three parts. This model is vastly superior to the other two in terms of the court's responsibility to guide others. A total of 111 footnotes are provided.