This book is the first of four volumes published under the series title The Judge and the Creative Positivist. Creative positivism is a legal philosophy that is an extension of H.L.A. Hart’s legal positivist theory presented in his classic work The Concept of Law. 

Moskowitz starts with Hart’s concept of ‘hard’ cases that in which there are gaps, open texture or penumbral factual situations. He then modifies Hart’s version of the discretionary theory that limits the exercise of discretion in making judicial decisions. The author is in a unique position to do so thanks to his having studied under Hart at Oxford, providing Hart at his request with a critique of the galley proofs of The Concept of Law. He demonstrates through the creative positivist theory how discretion is exercised in ‘easy’ cases too, where the law is determinate. In so doing, Moskowitz adds to Hart’s primary and secondary rules a new set of tertiary rules.

The Judge and the Umpire springs from a reaction against a Supreme Court Justice’s direct attempt to assimilate the two roles in his inaugural speech. In short, the author argues, because judges are authorized to create new legal rules, they are not like umpires who call balls and strikes with no authority to change the rules.

This series will be invaluable to students of US legal philosophy and provide researchers with a ground shifting new theory. This first volume examines six cases in detail, providing an introduction that is accessible to undergraduates and to general readers with an interest in the context of existing judicial decisions.

In this second volume, Moskowitz reviews the impact of the American Legal Realists who established that judges do not always apply the rules of pre-existing law in deciding cases.

Legal positivism is based on three theories: the pedigree theory (laws are based upon the sources of the legal rules); the separation theory (the distinction between law that is and potential law; the difference between law and non-law; and the separation of legal rules from moral rules); and the discretionary theory (judges have discretion when the law is unclear to create new legal rules rather than deciding cases by applying only rules that existed before the case was decided).

In Hart’s version of the discretionary theory, judges exercise discretion only in the cases in which the pre-existing law is indeterminate (the hard cases). Here, Moskowitz contends that judges not only exercise discretion only in the cases in which the pre-existing law is indeterminate (the hard cases), but use discretion in all cases in which they create a new legal rule. This may include cases in which the law was certain before the decision is made, but in which the judge does not apply the pre-existing law and, instead, creates a new legal rule. Moskowitz uses the law of zoning to demonstrate the complexity of the law. Zoning law is a combination of constitutional rules, federal statutes, state statutes, precedents, and local law that applies only in a single municipality.

This is volume three in the series The Judge and the Creative Positivist. Unlike zoning law, which is primarily local law and to a lesser extent state law and federal law, Moskowitz explains that the system for electing the US president is a combination of federal law, state law, and local law in approximately equal influence upon the way the legal process works.

“The U.S. democracy will survive only if there is a peaceful transfer of power after the members of the Electoral College meet and cast their votes for the winner of the election. The election is a contest. Like all contests, it must result in a winner (unless there is a tie). If the winner of the election does not become the president, there will be no democracy and the election will become irrelevant.” Moskowitz
 

This book looks at the aftermath of the 2020 election and the indictment of former president Donald Trump for four criminal offences following an attempt to prevent the peaceful transfer of power after he lost the election. If this effort had been successful, Joe Biden would not have become the President and Donald Trump would have remained in office. 

Moskowitz explains with his typical clarity and precision the complexities of the POTUS election system and how it still has its roots in the decisions made by the Founding Fathers. The book is rich in academic research, but has the added advantage of being written by a law professional who witnessed the 2020 process and subsequent events close-up. 
 

This book will be useful for students, tutors and researchers. It will also provide accurate, considered context for journalists, historians and anyone interested in the legal proceedings that are only just beginning... It includes analysis of and research into events as recent as August 2023, such as the Georgia indictment.

"The title of this forthcoming volume is the result of the Supreme Court deciding on June 24, 2022, to overrule two well-established precedents—Roe v. Wade and Planned Parenthood v. Casey. In doing so, the Supreme Court declares that these two precedents were incorrect decisions, though they did not use this term. A decision is a correct decision if it is made by applying a rule of the pre-existing law and the decision does not materially modify the legal rule. If the decision is not a correct decision, it is an incorrect decision.

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"In Dobbs v. Jackson Women’s Health Organization, the Supreme Court declared that the two precedents were wrongly decided. The reason given for their being wrongly decided is that they are declared to be inconsistent with the text of the Constitution and American history and traditions. As I will explain in The Judge and the Incorrect Decision, there is a profound and fundamental difference between a decision being incorrect and a decision being wrongly decided. The former is the result of an analytical process, while the latter must involve an evaluative process.

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"As the reader of the first three volumes in this series knows, any decision that is not a correct decision is an incorrect decision. It is an either/or choice. No decision is both correct and incorrect. Every decision is either correct or incorrect. The courts have authority to make incorrect decisions as well as correct decisions and incorrect decisions are authorized and binding. Being designated as an incorrect decision does not imply or suggest that the decision is not a good decision. It may, in fact, be the best decision that could have been made in that situation."