Carl v. Children's Hospital, 702 A.2d 159 (1997)

Citation: Carl v. Children's Hospital, 702 A.2d 159 (1997)
Parent Document: Carl v. Children's Hospital, 702 A.2d 159 (1997)
Jurisdiction: DC (municipal)
Effective Date: 1997-09-23
Original Source: https://www.courtlistener.com/opinion/2395626/carl-v-childrens-hospital/ ↗

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This court sitting en banc has noted that, at the time of Blackstone, “adjudication consisted of a search for the right or true rules of law [i]n accordance with the thesis that they always had been the law.”3 Because judges accordingly “found” the law, they could not be said to have “made” law. Later, the positivist school represented by John Austin “conceived of judges not as mere discoverers but as active creators of the law.”4 In overruling precedent, therefore, judges in Austin’s eyes did not merely discover error, as Blackstone would have it; they participated, rather, in “the dynamic process of redefinition and reformation that advanced the evolution of the law.”5 This latter view is the more realistic one. Common law judges from time to time do “make” law, however incrementally; indeed, they always have done so.

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