Publishing this autumn —
THE FOURTH VOLUME IN D. H. Moskowitz’s The Judge and the Creative Positivist series will be published this autumn. Building on the case-by-case development of his theory and his engagement with the great thinkers of legal philosophy, and having explored alternate sources through which judges can resolve difficult cases, Moskowitz now turns his attention to the American constitutional tradition and argues for the creation of a Constitutional Court.
Drawing upon his extensive research and distinctive positivist vision, Moskowitz examines the Constitution, its founding, and the ideas that shaped the American legal hierarchies. He proposes and details the type of Constitutional Court that Congress should now create.
What emerges is a searching inquiry into the relationship between inherited constitutional meaning and the creative role of the judge—and an exploration of how Creative Positivism might illuminate some of the most difficult problems facing the American legal system today.
In the first book, The Judge and the Umpire, six real-life cases are presented to demonstrate that, even where the existing law is certain, judges have sometimes exercised discretion. While judges may make correct decisions, which are decisions that don't modify in a material way the legal rule being applied, they also make decisions that are not correct. (Moskowitz calls them “incorrect decisions”.) These decisions are still valid, and the judge is applying a new legal rule by expanding, contracting, modifying the legal rule of the pre-existing law or by creating an entirely new legal rule.
Volume two: The Judge and the Philosopher
ISBN 978-1739182922
Huge Jam, February 2023, 264 pages
In the second book, The Judge and the Philosopher, the author describe Hart’s legal philosophy in more detail. The focus is on his version of the discretionary theory. Moskowitz uses the six cases from volume one to establish that judges exercise discretion in cases where Hart does not believe that discretion is exercised (the easy cases). He maintain that judges may look to alternate sources, such as the desire to make the just decision or the wise decision, in order to create new legal rules.
In the third book, The Judge and the President, the author expands the alternate sources to include what Hart called permissive sources. For example, “legal rules” that are mentioned in concurring or dissenting opinions. While Hart accepts that customary rules may be legal rules, he does not distinguish customary rules with the force of law from customary rules that lack the force of law. Using the 2020 election, Moskowitz demonstrates the difference between the two types of customary rules. Electoral College members
violate
a customary rule that lacks the force of law when they vote for a candidate who did not win the popular election in the state that has elected them. They are called “faithless electors”. If there are enough faithless electors within a particular state—so that the candidate who should have been elected does not become the President—this would
violate a customary rule with the force of law.
Volume four: The Judge and the Constitution
ISBN 978-1-916604-49-0
Huge Jam, publishing soon
In the fourth book, The Judge and the Constitution, the author presents the foundation for and principles of Creative Positivism. While someone may believe that Roe v. Wade (the decision declaring that abortion is legal) would qualify as an incorrect decision, Moskowitz's theory states that it cannot be overruled on the basis of that. Both correct decisions and incorrect decisions create legal rules, and the decisions are authorized, authoritative and binding.
But in
Dobbs the U.S. Supreme Court overruled Roe v. Wade. Overruling a decision because it is incorrect demonstrates a misunderstanding of the customary rules that are part of the legal system and the legal culture. It is a return to the traditional theory that judges are like umpires.
Attention turns to SCOTUS, and Moskowitz presents his own argument for the creation of a Constitutional Court. With examples from India, Austria, the UK and New Zealand, and a consideration of the intent of the Founding Fathers, book four provides readers with the details of the functions and make-up of this proposed new court.
The Fake Elector Playbook
ISBN 978-191-6604-230
Huge Jam, 2024
A topical companion to The Judge and the Creative Positivist series, The Fake Elector Playbook has been described as follows:
If this were a whodunnit novel, its two main suspects would be Kenneth Chesebro, the mastermind of the fake elector conspiracy, and Stefanie Lambert, a mysterious lawyer who was involved in the conspiracy in multiple states.
But this is not fiction …
This is the playbook that was developed in 2020. It describes the strategy of alternate electors, which was just one of the schemes operating in 2020 to try to avoid the peaceful transfer of power; a scheme resting upon the ambiguity and vagueness that exists in the federal, state, and local rules controlling the election process.
Moskowitz, a veteran lawyer, turned writer and commentator, explains it all here with his trademark clarity and intelligence.
