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What is the Law? Who makes the Law? What is a "Good Judge"?

Charlotte Attorney Gary Mauney Answers These Important Questions.

What is the Law? Where does the Law come from?


What is the law? What are its sources? Why are these important questions? We're obviously in the process of a U.S. Supreme Court judicial nomination. Not unremarkably, there are statements and opinions roaming the Internet about what law is or isn't and about what judges should or shouldn't do.


There are some basics that everyone should know. There are four primary sources of law at the state and federal levels: the United States Constitution and the state constitutions, federal and state statutes, administrative regulations, and case law (which includes what is known as the common law).


A Constitution is a charter that establishes the government and the rules under which the government must run. It is foundational, and therefore somewhat general, and it is subject to interpretation; such as the Fourth Amendment, which guarantees the right to be secure against "unreasonable" searches and seizures. What is reasonable to me, may not be reasonable to you, and, therefore, one judge may reach a different conclusion from another. That doesn't mean that one of them is a "bad judge."


Do Judges make law? Does a Judge's personal beliefs play a role in a case?

What does "precedent" mean?


As a result, on issues like "what is reasonable," the subjective beliefs of a judge, their opinions, sometimes come into play. Every judge is supposed to follow "precedent" set by prior cases, in order to give fairness and predictability to the law. The law that applied to one set of facts is supposed to be applied to the same or similar facts that follow. But almost no set of facts is exactly the same, and so the law depends on judges following norms and applying objective good faith to ensure consistency and fairness (meaning not distinguishing between cases on arbitrary or disingenuous grounds).


Otherwise, there is no real rule of law, and the law becomes indistinguishable from politics. Our legal system will not survive if most see it persistantly as an arm of one political party or another.


Judges necessarily make decisions about how the law applies to different facts.


There is no set of statutes or regulations that are perfectly tailored to the varying facts and circumstances that come before courts. When someone says "judges are not supposed to make the law," or they say "judges should strictly follow the law," I know that person is probably not a lawyer, or that person is trying to confuse others about what the law is.


What does it mean to "follow the law"?

Most of you are used to seeing lawyers sit in front of hundreds of sequentially numbered books containing what is called "case law." What you may not know is that those books contain thousands of decisions by judges that apply various statutes and the common law to a dizzying array of circumstances. Not surprisingly, one judge, acting in good faith, may believe that one set of circumstances fits a case, and therefore applies it as precedent, when another judge, also acting in good faith, thinks another case, another precedent, is appropriate to apply. Both judges are "following the law."


How can different judges arrive at different conclusions in similar cases?


A primary reason that Supreme Courts exist is to settle these differences among court decisions, known as "splits." Over time, if you study specific judges, and specific courts, you can see that some of them reach a fork in the road (a type of "split"), and they almost always turn left, or they almost always turn right. This does not mean the judges are not doing their jobs, or are not acting in good faith - but what it does mean is that judges are human beings, and the thought processes of human beings are broadly affected by their intellect, up-bringing, religion (or the decision to have none), educational and vocational training, temperament, and so on.


What makes for a "Good Judge"?


Good judges do their best to avoid disingenuousness, they avoid artful language, they eschew strained qualifications, they avoid gotcha "technicalities," they avoid so-called legal "fictions," and they avoid using other indirect means to give the false appearance that a decision fits a formula (a precedent) when any fair reading tells you it did not. When you hear about decisions from a judge that don't seem to make sense, chances are they do not make sense because that was the intention from the start.


Ask a good lawyer what makes a good judge, and the lawyer is likely to tell you four things: 1) I couldn't tell you what political party that judge belongs to; 2) I may not always agree with that judge, but I understand why she did what she did; 3) That judge speaks with plain candor, you know where you stand with her; and, 4) the judge was kind and treated the parties and the lawyers with respect. I measure judges by these characteristics, and as you watch judges on TV, or read their legal opinions, I hope you will too.


Do you need the help of an attorney?


Charlotte attorney Gary Mauney has 25 years of litigation experience. If you or a family member has been injured, or someone has defrauded you, don't choose a lawyer based on a television advertisement. Instead, contact Mauney PLLC for a personal and free confidential consultation, by telephone at 704/945-7185 or by email at info@mauneypllc.com. We'll have an in-depth conversation about your circumstances, and we'll help you decide whether the right move for you means retaining a skilled legal advocate.