A current debate in our society is whether judges make law, and, if they do,
whether that is their proper role. There is an underlying assumption that
making law is a new role for judges and reflects a liberal bias in the judiciary.
Common law judges were said to interpret law implicit in the statutes or
precedent cases. In this sense, they found law rather than made it. It was this
process of interpretation that gave life to the common law. Most critically, in
the colonial period England had no equivalent to the U.S. Supreme Court.
Parliament and the king had final authority and could overrule the courts. In
the U.S. constitutional system, the Supreme Court can overrule both the
president and Congress. Judges in the United States today make law just as
surely as do legislators.
The difference between finding and making law may seem inconsequential, but
it has profound implications. The Constitution prohibits ex post facto
laws—laws that punish past conduct that was allowed at the time. This means
that if a state passes a law making it a criminal offense to prescribe
amphetamines, that law cannot be applied to allow the prosecution of
physicians who wrote prescriptions for amphetamines before the effective date
of the law. However, if a judge finds a common law rule, such as an obligation
to obtain informed consent from patients, then, in theory, this is just a new
interpretation of the existing law. A physician who fails to obtain informed
consent for a surgery performed before the first court decision on informed
consent in the state could still be sued.
From the defendants’ perspective, there is little comfort in knowing that the
judge did not make the law that they are accused of violating. Since the
criminal law demands that the law be specific, most criminal law decisions are
not retroactive. Some courts apply this same principle in civil law by making
the new standards prospective when they dramatically increase a defendant’s
legal duties. They warn potential defendants of the new standard of conduct
without allowing them to be sued for past conduct. This poses a policy problem
because it denies compensation to persons previously injured by the now