X, which is caused by Statute X. Consequently the legislature enacts Statute X
since it produces the best outcome.
As indicated above, a similar reasoning process should logically apply to a
court making a common law rule. There are several possible versions of the
rule, including the option not to make the rule. These are represented as Rules
0-n. The court should choose the version of the rule that yields the highest net
benefit. If this version consists of Rule 0 the court should decline to make a
rule (because Rule 0 is the option to leave things as they are). If this rule falls
within the range Rules 1-n, the court should pronounce this rule in its judgment
as a new common law rule.
Interpreting Law
The prophesies of what courts will do in fact and nothing more pretentious
are what I mean by the law.
509
Introduction
Where there is an issue of interpretation a court resolves it by deciding that
one meaning
rather
than another is legally correct (or that two or more
meanings are legally correct.) To advise their clients, lawyers have to predict
how a court will make the decision. To do this they have to put themselves in
the position of the court. They line up the options. They then have to sense
how the court will decide the case, based on what they know about the
outlook of the court and its judges.
Making the Decision
I am paid for my opinions not for my doubts.
510
The model for forming law as it applies to interpreting law can be set out in a
diagram:
Step 1 Options
?
Step 2 Reasons
Meanings
?
Actual Effects
?
Desired Effects
Meaning 1
Effect 1
[Legislative Legitimacy]
Meaning 2
Effect 2
[Judicial Legitimacy]
Meaning n
Effect n
[Metademocracy]
Step 3 Decision
?
Step 2 Reasons
Figure 16.2 Interpreting Law
509
Oliver Wendell Holmes.
510
Richard Bethell, later Lord Westbury, cited in Parry (1923)
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