(DOWNLOAD) "Justice Scalia As Judicial Statesman (Comments) (Antonic Scalia)" by Modern Age ~ Book PDF Kindle ePub Free
eBook details
- Title: Justice Scalia As Judicial Statesman (Comments) (Antonic Scalia)
- Author : Modern Age
- Release Date : January 22, 2006
- Genre: Language Arts & Disciplines,Books,Professional & Technical,Education,
- Pages : * pages
- Size : 176 KB
Description
OF ALL THE MAXIMS of Chief Justice John Marshall, perhaps the most misleading is this: "It is emphatically the province and duty of the judicial department to say what the law is." Read literally, the maxim amounts to a mere tautology, for to decide a case is nothing other than to announce what the law is. Many, however,--and most especially those legal theorists called originalists,--have misread Marshall. They take his maxim to mean that the only duty of a judge is to say what the law is. Judges should not "make" law, they argue, and hence, confronted with an opinion of which they do not approve written by some disfavored judge, they find that judge in dereliction of his duty. In actually deciding cases, however, appellate judges must frequently do more than simply state what the law requires. Suppose, for example, a judge sitting on a three-judge panel divines with absolute certainty "what the law is" in a particular case. Do his duties end when he writes an opinion to that effect? No. His opinion will not become law unless one of his colleagues joins it. If they refuse, the judge necessarily faces a dilemma: he can dissent, in which case his opinion will not become law, or he can compromise, in which case his true opinion of "what the law is" will not be published. In deciding which course to take, that a judge knows "what the law is" will not help him. He has no choice but to rely on normative commitments to some authority beyond the law itself.
 "Justice Scalia As Judicial Statesman (Comments) (Antonic Scalia)" by Modern Age ~ Book PDF Kindle ePub Free){kind=link}