2 - The Traditional Understanding of Lawmaking by Appellate Courts

Summary

This chapter describes the traditional understanding of the nature of lawmaking by appellate courts in America. Often labeled as formalism, this conception of appellate court lawmaking is understood as being largely objective, highly logical, and fixed in nature. From this perspective, appellate judges were thought, while resolving specific disputes, to be also striving to develop and to refine the existing common law in a given jurisdiction so that it more and more came, over time, to accurately reflect a presumed ideal version of legal regulation. This activity was thought to be very similar in nature to the work of natural sciences when they seek to reconcile specific experimental results with current understandings and thereby move a field of science ever closer to an objectively correct account of the natural world. Accordingly, the ideal version of legal doctrine toward which formalist common law lawmaking aspired was commonly known as the natural law.