effect whose net benefit produces the highest value. Consequently the
legislature should enact the statute, and the court should make the
interpretation, which is supported by this policy argument. This, it is worth
repeating, is the fundamental rule for decision making when making or
interpreting law.
Making Law
The model for forming law as it applies to making law can be set out in a
diagram. Statute law is used as the example but making common law would fit
into the same framework and the same considerations would apply:
Step 1 Options
?
Step 2 Reasons
Statutes
?
Effects
?
Net Benefit
Statute 0
Effect 0
Net Benefit 0
Statute 1
Effect 1
Net Benefit 1
Statute 2
Effect 2
Net Benefit 2
Statute n
Effect n
Net Benefit n
Step 3 Decision
?
Step 2 Reasons
Figure 16.1 Making Law
Step 1 Options
Step 1 is to identify the options. The options before the court consist of
Statutes 0-n and the effect that each Statute is predicted to cause, that is,
Effects 0-n.
Step 2 Reasons
Step 2 is the reasoning process in which the legislature engages in order to
choose between the options. Here the legislature estimates as best it can the
net benefit of each effect. This is represented in the diagram as Effects 0-n
yielding Net Benefits 0-n.
Essentially an argument in policy for an action is as good as the effect which
the action causes. Consequently, the legislature has to decide which effect it
values most in the ranges Effects 1-n. It will determine this by determining
which effect has the net benefit that possesses the highest value.
Step 3 Decision
Step 2 identified the best option, being the option that yields the highest net
benefit. Step 3 entails making the decision to enact this option into law. To
illustrate, assume that Statute X causes Effect X that yields Net Benefit X.
Assume also that in Step 2 the legislature identified Net Benefit X as the
highest net benefit among the options. Net Benefit X is the net benefit of Effect
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