Uploaded by Lisa Murphy

How Law becomes Law

Running head: ASSIGNMENT 2
How Laws are Made by the Courts
Lisa Murphy – Wood
Professor Timothy Griffin
LEG215 – Legal Research and Writing
How Laws are Made by the Courts
The origin of legislative power, and the ability to delegate and authorize such, lies in the
framework of American democracy, the constitution. This storied document pushes all
legislative authority upon the legislative branch, which is composed of a bicameral congress. The
House of Representatives, as well as the Senate, are allotted the power to enact law which is
then presented to the executive branch for administration and lastly interpreted by the judiciary
branch. Hence, Congress is a legislative body by reason/source of the constitution.
Congress, as a legislative superpower, has taken its constitutional delegation to lengths
that may defy the initial intentions of the document. There is no clear indication that delegation
of legislation is unlawful in the constitution, however, there is a clear indication that all
legislative matters will be held in congress. There are several examples of this action presented
in Cecil T. Carr’s (1943) “Delegated Legislation in the United States” section of the “Journal of
Comparative Legislation and International Law.” These include a congressional act in 1794 that
allowed the President to create regulations for new embargos on ships, in 1799 the President had
been authorized to create and redefine commercial intercourse with the country of France, and
lastly, in 1922, the President was given the ability to alter tariff duties. All of these events should
have been congressional matters; however, congress passed these matters on to the executive
Furtherly, the definition of American government leads with the effective and necessary
division of powers. The three-pronged system was created so that no branch had a larger
influence on the country than the other. When congress allotted the ability to enact legislation on
to another branch of government, there is room for clear corruption. If congressional matters
continued to be passed onto the executive branch of government, it could create a reason for the
abolition of the legislative branch altogether. Therefore, in extreme cases leading to the decline
of a democratic America towards another, less intentionally balanced, structure.
In the judicial branch of American government, there is a clear effect of unbinding and
authoritative opinion known as dicta. In law terms, there is and should be a clear defining line
between holding and dicta. The former is a legal decision made in a judicial setting, and the latter
is, as Stinson (2010) puts it in “Why Dicta Becomes Holding and Why it Matters,” an unofficial
“extraneous statement made in a prior case”. The confusion between the two can create
disastrous results in court and judicial decisions. When a court considers dicta as it considers a
holding, the body may make a rash decision on a matter that remains mostly without
deliberation. The effects of dicta on judiciary decisions are viable and extremely likely in the
world of democratic law.
Coherently, dicta can prevent courts from clearly seeing the legal and fair contributions to
a case. Stinson (2010) mentions that in a case regarding the rehiring of striking employees
(NLRB v. Mackay Radio and Telegraph Co.) there was a dictum realized as a holding used in a
court decision. The case presented a dictum that read along the lines of not requiring businesses
to rehire employees after striking. The statement, in this case, was presented in the courts for
years after more as a holding than as the dictum it was. When considering a statement as a law,
there is a large margin of error created in the court system.
Additionally, in more general terms if a dictum is used in a court atmosphere, it may become a
tradition in judicial decisions. As seen above, a dictum can be implemented as a holding and
carry weight for years after the initial case. This creates inconsistency in court rulings and makes
room for inequitable error.
The American government was created with clear guidelines regarding the distribution of
powers and the structure of the judicial system. Congress has taken advantage of its ability to
delegate legislative power upon the executive branch of government. Likewise, the judicial
branch has taken advantage of dicta in court decisions as if the unofficial records were official
holdings. These legislative and judicial potholes carry a meaningful impact on the democratic
system as it is known.
Carr, C. T. (1943). Delegated legislation in the United States. Journal of Comparative
Legislation and International Law, 25, 47-54. Retrieved from
Stinson, J. M. (2010). Why dicta becomes holding and why it matters. Brooklyn Law Review,
76(1), 219-264. Retrieved from
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