Um, judges can and do make law, and have been doing so for nigh unto a thousand years now. "Common law" is judge-made law.
Judges actually have a responsibility to strike down unconstitutional and/or outdated laws, as well, whether the source of that law is case precedents (common law), statutes, or administrative regulations. That's what the U.S. Supreme Court did when it overturned Bowers v. Hardwick, last summer.
Of course, it's possible that you're correct -- that he was being deliberately provocative, in the hope that the legislature would change the law. Many judges are uncomfortable with creating law, as opposed to merely interpreting it. But most judges who see the need for changes in law write remarks to that effect in their opinions -- dropping a huge hint to the legislature, in effect. Those judges are usually prepared to change the law themselves, when a case that enables them to do so comes along, if the legislature doesn't take the hint.
Snarking a legislature into action would be a very dicey strategy. It's much more effective to drop hints to the legislature in opinions, or if need be simply disregard precedent and make new law on the judge's own initiative. :-)
![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
timeasmymeasure
Re:
Date: 2004-01-29 07:36 pm (UTC)Judges actually have a responsibility to strike down unconstitutional and/or outdated laws, as well, whether the source of that law is case precedents (common law), statutes, or administrative regulations. That's what the U.S. Supreme Court did when it overturned Bowers v. Hardwick, last summer.
Of course, it's possible that you're correct -- that he was being deliberately provocative, in the hope that the legislature would change the law. Many judges are uncomfortable with creating law, as opposed to merely interpreting it. But most judges who see the need for changes in law write remarks to that effect in their opinions -- dropping a huge hint to the legislature, in effect. Those judges are usually prepared to change the law themselves, when a case that enables them to do so comes along, if the legislature doesn't take the hint.
Snarking a legislature into action would be a very dicey strategy. It's much more effective to drop hints to the legislature in opinions, or if need be simply disregard precedent and make new law on the judge's own initiative. :-)