Democratic legal systems make law in one of two ways: by abstracting general principles from the decisions made in individual cases (from the bottom up); or by declaring general principles through a centralized authority that are to be applied in individual cases (from the top down). These two processes are, respectively, adjudication and legislation. Each process highlights and hides different aspects of a legal problem. The single-case perspective of adjudication can seem narrow, and hence inferior to the broad perspectives that legislatures can incorporate into their decisionmaking processes. The adjudicative approach, however, has advantages that are less obvious. Notably, the adjudicative process is more likely to facilitate the adoption of simple, elegant rules for decisionmaking. The assessment of which approach is superior is therefore indeterminate. Each has its strengths and weaknesses that make it more or less appropriate for different contexts.
Rachlinski, Jeffrey J., "Bottom-Up versus Top-Down Lawmaking" (2006). Cornell Law Faculty Publications. 918.
Published in: University of Chicago Law Review, vol. 73, no. 3 (Summer 2006).