In the federal confirmation process, a standard question from the judiciary committee is, 'Well, if you're confirmed will you legislate?' And, with a look of horror, the nominee says, 'Oh, I won't legislate.' Well, what about the law of contract and tort; where do they think it came from, the stork?
About this quote
- What does it mean?
- Nominees often claim they won't legislate, yet the law of contracts and torts originates from sources beyond any single authority.
- In plain terms
- Even if judges say they won't make law, legal principles come from many places.
- What can you take from it?
- Recognize that law is shaped by many forces, not just judicial restraint.
Where it applies
Putting it to work
Questions to consider
- How should nominees address the influence of existing law on their decisions?
- What expectations are realistic for judicial restraint?
Another view
The metaphor of a stork may oversimplify complex legal origins.
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