The Common Law and Statutes

Peter L. Strauss, The Common Law and Statutes, 70 U. Colo. L. Rev. 225 (1999)

The main point relevant to me is the idea that courts make law when they're interpreting statutes insofar as the interpretations have precedential force. Much ink has been spilled over whether interpretation is lawmaking (e.g. Kelsen's application as (lower) norm creation), but it seems rather uncontroversial to say that courts make law when they interpret statutes and expect other courts to follow those interpretations.

Note how this argument relates to the argument that judicial lawmaking is ok so long as it's tied to an existing federal statute, made by Larry Kramer in The Lawmaking Power of the Federal Courts. Interpretation is by its nature lawmaking tied to a statute, and thus would, under the moderate lawmaking power view of Kramer, be entirely legitimate.