How judges think

What materials does a judge use when deciding what the law is and how it should be applied to a particular set of facts?

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First, the judge looks to see whether a federal, state or local legislative body or government agency has spoken to the issue in the form of a statute, regulation or ordinance.

If a legislative body or government agency has addressed the issue, the judge’s next step is to look for and read written opinions issued by other judges who previously have interpreted the legislative enactment in ways that are relevant to the current issue. For example, suppose that a state law requires landlords to offer and maintain residential rental property that is “fit and habitable.” A tenant has broken his lease and moved out because the heater in his apartment will not raise the temperature above 60 degrees. In order to decide whether this fact renders the apartment “unfit” and constitutes grounds for breaking the lease, a judge would search for a previous case in which a higher court had considered the question of habitability under similar facts.

If there is a statute, regulation or ordinance but no other court has previously interpreted it, the judge does her best to figure out what is intended by its wording. If the language isn’t clear, she tries to discover what the legislative body or governmental agency had in mind when it wrote the law.

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