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Judge-Made Law

The plaintiff was urging a legal rule which you thought was wrong. I thought it was legally right, but very unjust, and I didn't want to apply it. So, I made up my mind to lick the plaintiff on the facts. And by giving him every break on procedural points, I made it impossible for him to reverse me on appeal, because as the testimony was oral and in conflict, I knew the upper court would never upset my findings.
-- Unnamed District Judge

Frank, J., Courts on Trial (1949)

The prisoner and the lawyer were discussing civil law, and going over important court decisions made over the years.

"It ain't what cases say, man, it's what the judges say the cases say that makes the law," the prisoner said.

The lawyer's mouth formed a neat oval.

"What's up man?"

"I was just surprised to hear you say that."


"Because when I was in law school, one of my professors used to say the same thing: it's not what the cases say that makes law, but what the judges say the cases say."

Many people trust their lives, their liberty and their wealth to some judge who, like the lowest, vilest politician, had to slum for money to pay for his own political campaign (or had his office given to him by politicians).

They trust, and they hope, but few really knew anything about the law, or the judicial process.

It is but to state the obvious to say "judges are people too", but it is rarely noted that judges are essentially politicians in black robes.

The decisions that they render are, more often than not, political as opposed to purely legal.

They serve the interests of the power elite, and act in ways to preserve the existing status quo. That is the essential lesson that emerges from any honest study of American legal history, for the longest period of U.S., and before that, colonial history.

Seen in this light, the law of Plessy v. Ferguson (which supported white supremacy) is more in tune with U.S. law than Brown v. Board of Education (which called for integration).

Indeed, Brown was itself decided on political grounds. Scholars insist the U.S. Solicitor General urged the Supreme Court to rule in support of the plaintiffs in part because it would support the U.S. image abroad, especially in Africa and the Caribbean.

Why are American courtrooms so often the graveyard of Black hopes and aspirations?

The answer may be found not so much in the "Law", as in politics.

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