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17 Harv. J. L. & Pub. Pol'y 155 (1994)
Judges As Liars

handle is hein.journals/hjlpp17 and id is 177 raw text is: JUDGES AS LIARS
I agree with much of what Professors Graglia and Merrill have
said, but I view them both as excessively optimistic.' They fail to
regonize and accept a fundamental paradox inherent in our
Courts, by their very nature, are institutions designed to re-
solve conflicts between parties.2 In any judicial system in which
present resolutions of conflict-such as individual case deci-
sions-have some degree of precedential weight, courts do make
law, public policy, or at least public choices.' Thus, one part of
the paradox is that courts occasionally make public policy deci-
sions or law. In that sense, the rule of law, to the extent that the
concept is intended to mean that judges apply only pre-existing
law, can never exist.4 Judges often make rules for decision of fu-
ture cases and are, therefore, making law.
The other side of the paradox is that precisely because all
courts, including the Supreme Court, resolve conflicts between
the parties before them, judges must have something to tell the
loser.5 Presumably, courts could tell the loser: You have lost be-
cause we, the judges, have chosen that you should lose. We have
so chosen because we think society would be better off if you
* Professor of Law, University of California at Berkeley School of Law (Boalt Hall).
1. See Lino A. Graglia, Do Judges Have a Policy-Making Role in the American System of Gov-
ernment?, 17 HAR. J.L. & PUB. PoL'Y 119 (1994); Thomas W. Merrill, A Modest Proposal for
a Political Court, 17 HARv. J.L. & PUB. POL'Y 137 (1994).
2. See BLAca's LAW DiCr5ONARY 352 (6th ed. 1990) (defining the term court as [a]n
organ of the government, belonging to the judicial department, whose function is the
application of the laws to controversies brought before it and the public administration of
3. SeeAntonin Scalia, The Rule of Law as a Law of Rules, 56 U. Cmi. L. REv. 1175, 1176-77
(1989) (In ajudicial system such as ours, in which judges are bound, not only by the text
of code or Constitution, but also by the prior decisions of superior courts, and even by the
prior decisions of their own court, courts have the capacity to 'make' law.).
4. See Karl N. Llewelyn, Some Realism About Realism-Responding to Dean Pound, 44 HARv.
L. Rzv. 1222, 1238-39 (1931) (arguing that the rule of law has never really existed be-
cause judges have always made law using rules to make their decisions seem plausible);
cf.James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439, 2451 (1991) (ScaliaJ., concur-
ring) (I[ludges in a real sense make law. But they make it as judges make it, which is to say
as though they were finding it--discerning what the law is, rather than what it is today
changed to, or what it will tomorrow be.) (emphasis in original).
5. See Michael J. Saks & Peter D. Blanck, Justice Improved: The Unrecognized Benefits of
Aggregation and Sampling in the Trial of Mass Torts, 44 STAN. L Rav. 815, 817-20 (1992).

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