The Courts, Part 3: How Courts Work and Make Laws

Authored By: Carl Vinson Institute
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How Courts Work and Make Laws

This document tells you the following:

  • What do judges and juries do?
  • How do courts make laws?
  • What is common law?
  • What is precedent?
  • What is equity?
  • How do courts change laws?


Expressions such as "the court hears a case" or "the court decides" refer to the judges or justices in the court who hear and decide on the cases. Lawyers often refer to "the court" when they are speaking to the judge.

A trial court judge controls the conduct of the trial and ensures fairness to all parties. A judge decides questions of law. If there is no jury, the judge also decides questions about the facts in a case.

The right to trial by jury is a cherished part of our system of justice. Both the state and federal courts have two kinds of juries: grand juries and trial juries (also called petit or traverse juries). The grand jury indicts (or formally accuses) persons suspected of committing felonies. Trial juries decide the facts in criminal or civil trials.

Many courts have more than one judge or justice. Usually, only one judge hears each case at the trial court level. The Fulton County Superior Court has 19 judges, for example, but they preside individually over the cases brought before the court.
On the other hand, appellate cases are usually heard by several (sometimes all) judges of the court. The number of judges in a particular case depends on the laws governing the court as well as the type of case that is being heard.

To decide a case in an appellate court, usually a majority of the judges must agree on a decision. Although there can be only one decision, there may be a variety of opinions about that decision.
In the federal court system, almost all judges are appointed for life, as required by the U.S. Constitution. In the Georgia court system, however, almost all judges are elected (rather than appointed) for set terms. These terms are six years for appellate judges and four years for trial court judges. Juvenile court judges and some magistrate court judges are appointed to terms of similar length.


Courts interpret the law by explaining or clarifying what the law means. A court might interpret law from a constitution, a statute, or an agency regulation.

Courts also make laws when they determine the validity of laws. Determining the validity of a law means considering whether it was properly enacted and if it is within the powers and limits of the government.

Court (or judicial) interpretations of powers and limits may change. For example, in the 1960s there were many concerns about the rights of persons accused of crimes. In 1963, the Supreme Court decided that a person accused of a felony was entitled to be represented in court by an attorney. This requirement then became part of the right to due process of law (that is, fair treatment). Before 1963, it had not been part of that right. Can you see how this decision gave new meaning to the law concerning due process?

Common Law

So far, we have been talking about court cases involving laws made by constitutions, legislatures, or agencies. What happens when courts must decide on legal rights and duties without any written law to govern the situation?

Before the United States existed, the main source of law in England was common law. Common law can be defined as the legal rights and duties that courts declare exist in particular situations in the absence of statutes. Other courts then apply the court rulings from previous cases to current cases involving similar situations in order to resolve them.

The American system of justice originated from English common law. Much of that law has been enacted into statutes and codified, or gathered together into subject matter areas and published in books of laws, or codes.

However, some types of laws have not been enacted into statutes. Laws of torts (that is, wrongful acts that harm a person or property) and contracts are examples. The courts continuously interpret, renew, and create common law in these areas.

Reasoning by Analogy

When they consider a case, judges determine the legal rights and obligations of the parties involved. They first look for an applicable rule of law in constitutions, statutes, and agency rules. They also find out what other courts have decided in similar situations.

This method of decision making-looking to see what has happened in similar situations-is called reasoning by analogy. Reasoning by analogy is based on the idea that if two or more things agree with each other in some ways, they will probably agree in others.

Such reasoning by analogy has become the basic tool of court decision making because it reflects the court's concern with consistency. Court decisions need to have some degree of consistency so that people will know what their legal duties are. Courts therefore rely on previously decided cases (or precedent) to form opinions in current cases.


As has been mentioned, courts often rely on previously decided cases (or precedent) to form opinions in current cases.  The principle whereby a previous decision is applied to other cases in which the facts are similar is called stare decisis (pronounced "starrydisighsis"), a wellknown principle of law. A court may decide that the facts differ from those in an earlier case, however. Then, the court is not required to follow the first case. Before deliberately breaking with consistency, a court must be very sure there is a substantial difference in the facts of the case.


Infrequently, a court faces a situation in which applying an established rule of law would have an unwanted or unjust result. The power of the court not to apply a rule in a special situation is called equity.


The Effects of Change

Courts, in general, are cautious about change. In making decisions, they usually look to what has gone before. They look to precedents. Usually, courts reject precedents only for strong reasons.

On the other hand, each court decision adds new meaning to existing laws because the law is interpreted anew in each case. In this way, court-made laws-and laws in general-are constantly being redefined and changed.

The U.S. Constitution gives Congress the power to make laws regarding patents. Patent and trademark laws were originally passed to protect machines or other identifiable inventions. The U.S. Supreme Court has found that new forms of life are similar to other inventions.

Similarly, court interpretations have modified laws in response to changes in values as mentioned in chapter 2. A good example is the landmark U.S. Supreme Court decision in 1954, Brown v. Topeka Board of Education (374 U.S. 483 1954). In effect, it said that racially segregated schools are not equal. They do not provide all children with "equal protection of the law." Many years earlier, courts looking at the same issue had held that such schools could be "separate but equal." The 1954 decision reflected the changed attitudes of many people.

Using the Courts to Bring about Change

For people in many situations, the courts offer the most effective way of trying to change existing laws. In fact, the courts may seem the only protection against the power of government and society. People can initiate suits to stop harmful actions of the government or others or because they think their rights are being violated or that a government act violates existing laws. However, people are not allowed to use courts to change laws unless there is a real controversy. There must be some actual harm or a threat of an immediate harm that, once done, could not be remedied.

Sometimes-to bring about change-people deliberately break the law. For example, as a form of protest against segregation in the 1960s, African-American demonstrators broke laws designed to segregate races by eating at "whites only" lunch counters in restaurants and using the whites only section of buses. They intended to call the courts' attention to violations of equal protection. By breaking existing laws, people risked punishment, but they felt that the risk was worth it.

It should be kept in mind, however, that court rulings-even landmark decisions-do not create immediate changes. Sometimes it takes years-even decades-for changes to follow court decisions, as in the court decision concerning the racial desegregation of schools.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jul 30, 2004