Is It Trail According To Law?

We have thought that judge decides strictly according to law. The paper argues that they don't do so through the study of U.S. federal judges. Chapter 1 focuses on the situation from the colonial period to early 19th century. With the influence of England, America had installed the tradition that judge judges free from any mind, including his self mind. The disputes in the meeting of Constitution-making and the status of judicial branch in the Constitution have proved that it had been accepted by the insiders and the public. Chapter 2 argues another thought on the role of the judicial branch, which is that judge does make law according to his own thought. When we look through the history of U.S. federal court, we can find that judge does actually conceal his own value, first by the natural law, then by the clause of due process of law. When the Lockner Era Court came, judge's value was so obstinate that they veto some legislations regulating economy even though the main current agreed on the regulation. After 1937 "constitutional revolution", the situation was so on, and the transformation is the focus, from economic regulation to civil liberties. Chapter 3 argues the traditional theory of common law, which thinks that judge find law. But modern theory of common law has found that the role of judge is far from passivity. Judge take role of the center of law to transform the ration of common law to the ration of his self. With the judicial technology, judge makes his value into the trial under the cover of neutrality. Chapter 4 argues the judicial technology of common law. Fact-finding, Precedents, legal reasoning and judicial interpretation are the means of judge to make law. Judge's tuition has made important role. Chapter 5 argues the dual of judge's value, that is on the one hand judge is one member of total society, on the other hand judge doesn't keep pace with society because of his background. Judge makes choice between contradictional values. Chapter 6 argues that judge is the politician, who makes public policies through judgment, and court is one kind of political organ, which differs from other political organ in the way of function.