Definitions
GNU Webster's 1913
- adj. Created by judges or judicial decision; -- applied esp. to law applied or established by the judicial interpretation of statutes so as extend or restrict their scope, as to meet new cases, to provide new or better remedies, etc., and often used opprobriously of acts of judicial interpretation considered as doing this.
Judge-made law is contrasted withstatutory law andcivil law .
Examples
“Today, in my experience, “common law” tends to bear the first meaning (judge-made law).”
The Volokh Conspiracy » Originalism and Linguistic Questions
“There are some worrying grey areas that merit sensible debate, but the various hysterical claims made by editors – about judge-made law, the inadequacies of the ECHR, the bypassing of the British parliament, the need for a British bill of rights and the chilling effect on investigative journalism – are well wide of the mark.”
“But a judge-made rule—the one the Supreme Court is scrutinizing today—requires courts to defer to the Patent Office absent "clear and convincing" evidence that the examiner overlooked something.”
The Wall Street Journal: Digital Innovators vs. the Patent Trolls
“BTW - can anyone get a message to a dem on the committee to ask her if she believes the judge-made law of marbary v madison should be followed?”
“Stare Decisis has some positive features, like providing for constant interpretions of law across different cases, but also negative ones, like allowing a body of judge-made rules to supplant the original constitution.”
The Volokh Conspiracy » Legislating Miranda Rights for Terrorism Cases?
“It really depends on how you define judge-made, most rules of law are judge-made in the sense that Miranda or SDP is.”
“Calling it “judge-made law” that no one should be punished without a trial and conviction seems to me a bit of a stretch.”
“ShelbyC says: zuch: The Miranda rule is a judge-made rule.”
“That is unacceptable when it comes as the consequence of judge-made rules created to fill supposed “gaps” in positive federal law.”
“(Certainly early federal court cases, even ones applying judge-made speech restrictions and not statutorily enacted ones, treated the First Amendment as at least potentially applicable.)”
The Volokh Conspiracy » Where’s the State Action in Tort Awards Based on Speech?
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