Limits of Judicial Lawmaking and Prospective Overruling
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02262.x |
| Published date | 01 November 1966 |
| Date | 01 November 1966 |
THE
MODERN LAW REVIEW
Volume
29
November
1966
No.
6
LIMITS
OF
JUDICIAL LAWMAKING
AND
PROSPECTIVE OVERRULING
TIIE
Blackstonian doctrine of the
"
dcclarntory
"
function of the
courts, holding that the duty of the court is not to
"
pronounce
a
new law but to maintain and expound the old one," has long bccn
little more than a ghost. From Holmcs and GBny to Pound and
Cardozo, contemporary jurists have increasingly recogniscd and
articulated the lawmaking functions of the courts. The radical
transformations which, for example, contracts, torts
or
family law
have undergone at the hands
of
the courts have made it increasingly
difficult to maintain the time-honoured fiction
of
the declaratory role
of
the judge.
It
is not, perhaps, surprising that it should have been
abandoned more wholeheartedly in the United States than in
England. The profound effects, in all walks
of
life, of the interpre-
tations of the Constitution by the Supreme Court-a Constitution
which has in theory remained almost unchanged and yet governed
the legal life
of
thc country for almost two centuries-havc long
created in the United States a picture of the judge and his function
very different from that traditionally cherished in England.2 The
celebrated dictum that
"
the Constitution is what the courts say it
is
"
8
has, if anything, been reinforced by the momentous decisions
rendered by the court during the last decade in such matters as
school segregation, voting rights and the redrawing of c!ection
districts. In England it may be that sheer respect
for
tradition,
or
1
Commentaries
(1808) 16th od.,
at
p.
G9.
2
The need to adapt tho roceivod common
law
of
England to the diversity and
dynamism
of
American conditions
also
tended to depreciate logislation and
elovnto the formative functions
of
the courts.
"
This
depreciation
of Lhe statute
book
was
promoted by the preerninenco
of
casemado, judge-made
law
in tho
formative first half
of
tho nincteenth century; and this
was
reinforced, first,
by
tho office-rpprontico system of legal education, and then by the spread
of
the
case method in the
law
schools." Hurst,
The
Growth
of
Amcrican
Law
(lO[iO),
at
p.
180.
8
Charlos Evans Hughes, lator Chiof Justice of the Unitod States, in an address
to tho Elmira Chamber
of
Commerce, 1007
(Addresses
of
Charles
Evans
Hughes
190&191G
(2d
od.),
p.
185).
VOL.
29
598
21
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