Legal Realists

Answer choices

1. A

   Too Strong: usually4% picked this

   The judge writing the opinion is usually careful to specify those parts of the opinion he or she

   If anything, the passage suggests that only a minority of the time do judges carefully specify which parts of the opinion are the dicta. "They pointed out that even when the judge writing an opinion characterizes part of it as 'the holding' ..." We use the expression "even when" to talk about exceptions. Suppose we say, "Jimmy usually refuses to go bowling. Even when it's free taco night at the bowling alley, he declines." The even when is used to talk about special cases, not the norm. Even if we don't think that the passage is suggesting the opposite, we can reject this answer because the passage certainly doesn't quote the realists as saying that more than 50% of the time, the judge writing the opinion carefully specifies which parts are the dicta.

   4%
2. B

   Too Strong13% picked this

   The appropriateness of the judge’s decision would be disputed by subsequent judges on the basis of legal rules

   Too Strong: would be Contradicted: dispute appropriateness The realists say that subsequent judges are "unlikely to dispute the (original) decision itself". They will just dispute what was / wasn't essential to that decision. The passage leaves room for the possibility that sometimes a subsequent judge might dispute a ruling based on something in the dicta, but it seems like a very rare event, and this answer is definitely saying "appropriateness would be disputed by what's in the dicta". That's definitely not how the system is intended to work. Only the stuff in the holding is supposed to be directly legally relevant to the decision.

   13%
3. C

   Too Strong: fixed Opposite, if anything4% picked this

   A consensus concerning what constitutes the dicta in a judge’s opinion comes to be fixed over time as

   The severe strength of "a consensus comes to be fixed" seems to go against the idea that "Later judges have tremendous leeway in being able to redefine the holding and the dicta".

   4%
4. D

   Correct76% picked this

   Subsequent judges can consider parts of what the original judge saw as the dicta to be essential

   Why this is right

   The original judge says, "Here's what's essential to my decision: the holding. Here's everything else: the dicta." And then later judges have tremendous leeway to redefine where the boundaries of holding and dicta lie. So a later judge might move something from the holding to the dicta, i.e. treat something that was identified as essential to the original opinion as though it was inessential. Or a later judge might move something from the dicta to the holding, i.e. treat something that the original judge didn't think was essential as though it was essential.

   Skill tested: Inference · how this choice captures the passage's function is the move to repeat next time.

   76%
5. E

   Too Strong: usually / easily2% picked this

   The judge’s decision and the grounds for it are usually easily distinguishable

   If judges clearly demarcated part of their written opinion as the Holding and part of it as the Dicta, then it would be easy to distinguish one from the other. However, the realists are making it seem like that's atypical: even when the judge writing an opinion characterizes part of it as "the holding" ... We get the implied sense that judges usually don't characterize part of it as the holding. They must just expect people who read the opinion to be able to distinguish holding from dicta. Given that realists think that indeterminacy pervades all facets of the law and that they think that "in practice the common-law system treats the holding / dicta distinction loosely", this answer seems to go more against what the realists are saying.

   2%