Abstract
This paper contains remarks given in March 2015 as a Stead Seminar at the University of Baltimore School of Law. The topic of the seminar was the place of judge-made law in a government of laws. The argument of the paper is that judge-made law is consistent with a government of laws insofar as it limits executive discretion. The argument is substantiated by a study of the origin of judge-made law in the early English common law.
Highlights
The decades following the American Revolution brought dramatic changes for courts of law.[1]
This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution
The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws
Summary
The decades following the American Revolution brought dramatic changes for courts of law.[1]. My contention is that once we put procedure and discretion at the center of the picture, the place of judge-made law in a government of laws will look very different, and that this is the seed of a persuasive constitutional argument to elevate the station of the judiciary To see these relationships clearly, I think it is useful to step outside the perspective of the late eighteenth-century, where institutional changes in American courts of law obscure the matter. Let us take a moment to examine the early common law, here understood as process by writ original, resulting, in some cases, in proceedings before the king’s justices The expansion of these procedures and the growth of the royal courts were administrative innovations undertaken by the king with the aid of his council, and, in a few cases, with the assent of the great men of the realm. The law made by the king’s judges became their law, not the exercise of an alien royal discretion
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