Review by Choice Review
Many ascribe to the common law the underlying assumption that stare decisis and the principle of legislative/statutory supremacy vests in common law judges the power and responsibility to apply the law but denies them the authority to make or develop it. Thus, when confronted with a manifestly unjust law, the judge faces a moral dilemma: either apply the law despite its unjustness or deliberately misinterpret it in pursuit of a just conclusion. Edlin (Dickinson College) skillfully challenges this assumption. Employing case law, constitutional history, and jurisprudential and political theory, Edlin contends that common law judges possess a dual mandate--to apply the law but also to develop it. Consequently, the dilemma of the common law judge confronting an unjust law is moral, but also legal in that the remedy for the injustice may lie within the development of the law itself. Edlin distinguishes between constitutional interpretation and common law review. Although persuasively made, Edlin's arguments are not likely to warm the hearts of US critics of "law-making" activist judges. Summing Up: Recommended. All undergraduate and graduate collections. J. D. Gillespie College of Charleston
Copyright American Library Association, used with permission.
Review by Choice Review
