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Do Judges Make New Law in Hard Cases?
Member rating: No Rating | Words: | Submitted: Mon Jun 19 2006
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DO JUDGES MAKE NEW LAW IN HARD CASES? JOSEPH BUCCHERI I. INTRODUCTION. 1 II. HERBERT LIONEL ADOLPHUS HART (1907-1992). 2 A. HART'S SLANT ON POSITIVISM. 2 B. HART'S VIEW OF JUDICIAL DECISION MAKING. 3 C. PLAIN CASES - THE MOTOR CAR AN AUTHORATIVE EXAMPLE. 3 D. APPLYING THE AUTHORATIVE EXAMPLE - THE ROLLER SKATE. 4 E. INDETERMINACY - MEN ARE NOT GODS. 4 F. INDETERMINACY OF AIM - THE ELECTRIC CAR. 5 G. DELEGATION - SETTING A RATE. 6 H. REASONABLENESS - THE DUTY OF CARE. 6 I. PRECEDENT - INDETERMINACY OF A COMPLEX KIND. 7 III. RONALD DWORKIN. 8 A. EXPANDED TEXT. 8 B. HOW ARE PRINCIPLES APPLIED? 9 C. STRAW MAN. 9 1. Discretion. 10 D. WHEN CAN A JUDGE MAKE NEW LAW IN DWORKINS MODEL? 12 E. CRITICS OF DWORKIN 13 1. Stanley Fish. 13 2. John Gardner 14 IV. CONCLUSION - IS HART'S JUDGE CREATING NEW LAW? 15 V. BIBLIOGRAPHY. 18 I. INTRODUCTION. How do judges arrive at the decisions they make when adjudicating cases? This question has been the subject of a great amount of debate over a great many years. Various legal theorists have turned their mind to this question and many different models have been proposed, each theorist of course believing they have discovered the answer! Lively debate has ensued! One...
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