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Do Judges Make New Law in Hard Cases?
- Essay length: 5573 words
- Submitted: 19/06/2006
The first 200 words of this essay...
DO JUDGES MAKE NEW LAW IN HARD CASES?
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
How do judges arrive at the decisions they make when adjudicating cases? This question has been the
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