Where Do Judges Get the Law?

Posted: 18 October, 2021

Judges are the final authority in the courtroom.   Their decision is the final say.  At least when it comes to your divorce or custody case.  If you and your spouse cannot reach an agreement, the judge will make the final decision for you.  If you cannot agree on who will get custody the judge will.  If you cannot agree on how much the home is worth, the judge will.  Their court order must be followed until a new judge makes a new decision.

The is the reason the judge is elected.  Judges in Las Vegas are elected, not appointed.   Their job is to make final decisions that spouses, or parents cannot make themselves.   But a Judge’s authority is not without limits.  They are not allowed to just make up what is right and what is wrong.  They are given laws and rules to follow in making their decisions.

The laws they use come from several places.   Let me take you back to your high school history class.  Remember the discussion on the three branches of government?  We have the legislative branch that makes the laws.  We have the executive branch that enforces the laws.  And, we have the judicial branch that interprets the laws.

The first place the judge looks for the laws is from the court’s rules.   Courts apply rules to their procedures.   The technical term used is “rules of civil procedure”.  Ironic because there is nothing “civil” about divorce court in Las Vegas.  These rules are created by the Supreme Court of each State.  They set out the rules for how the court will work.  These rules determine how someone files a Complaint for Divorce.  These rules determine how long someone has to respond to a Complaint.   The rules determine what evidence is admissible and what evidence is hearsay.    The judge, the attorneys, and the parties involved in the case must know and follow these rules.

The next place the judge looks for laws is something called common law.  Our court system is basically copy of the British court system.  The colonists copied the court system they were familiar with.  In doing so they took with them many standard laws from the British believed in.  For example, our rules regarding a contract or a will are the same rules the British courts have used for hundreds of years. These laws are what attorneys call “common law”. They are called this because the laws are so old everyone in law agrees on them.   Common laws have been around for centuries. They are not questioned.   Think of them as agreed upon laws.  They are like rules of science.   You would never question gravity.  And in court you would never question common law.

The next place is the legislative branch.  Each state’s legislature creates laws regarding divorce and custody appropriate for their state.  Your state legislatures make the rules regarding how to determine custody, how to calculate child support, or how to divide the couple’s assets.    In Nevada these laws are called statutes. Here is a copy of Nevada’s divorce laws. The judge must follow these statutes.   The judge gets to review the facts in your case and decide which way to decide based on the statutes.

What if a statute is confusing?  Or what is a statute is not quite clear?  This is where “case law” comes into play.  Case law is where each state’s supreme court listens to a case where the law was unclear.   A case where a judge applied the law one way and the attorney thinks the judge was wrong.   The attorney files an appeal.   The supreme court judge reads the appeal and decides the best way the judge should have interpreted the law.   This supreme court decision becomes case law.  Case law b provides everyone a clearer understanding of how the statute was meant to be interpreted and how it should be applied.

Courts call these supreme court decision “stare decisis”.  It’s Latin for it has already been decided.  Stare decisis was created in one of the first cases our U.S. Supreme Court.  In 1803, Chief Justice John Marshall reviewed the case of Marbury v. Madison.  In this case he established the principle of judicial review.   This means the court, not the legislature or executive branch, gets to review law and decide how it should be interpreted.   The doctrine of stare decisis ensures that new cases follow previous case law.   The intent is to make the law a bit more predictable.  You wouldn’t want one judge to make a decision one way on Tuesday and then another judge makes a completely different decision on Wednesday.  Stare Decisis is a way of keeping the judge’s decisions predictable. With past case law to go by, attorneys have an idea on what the judge is likely to decide in your specific case.

In conclusion, the judge must follow these court rules, statutes and case law.  The judge listens to the facts in your case and then makes a final decision.  But only after using thee relevant rules and laws as guide posts.

author avatar
Rock Rocheleau