Reading Comprehension

PT10 · S3 · P3 · Q19 Legal Realists

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Currently, legal scholars agree that in some cases legal rules do not specify a definite outcome.

Topic

The debate over how much indeterminacy (uncertainty) exists in legal rules and judicial decisions, focusing on mainstream legal scholars versus the "realist" philosophers.

Framework

Present Debate

Main Point

While most modern legal scholars believe that indeterminacy in law is limited to a few vague cases, the earlier "realists" argued that indeterminacy is widespread, affecting both the language of legal rules and the ambiguity of judicial precedents. ( — end of paragraph 1, and explained throughout.)

P1: Two Competing Views on Legal Indeterminacy

Most current scholars say legal rules are usually clear and only sometimes vague, but an earlier group called "realists" thought that uncertainty is much more ingrained and widespread throughout the entire law.

P2: Linguistic Vagueness and Overlapping Rules

The realists believed that every legal case involves multiple overlapping rules, each with possible vagueness. This means ambiguity can crop up at many different points, making almost every legal case potentially indeterminate.

P3: Indeterminacy in Judicial Precedents

Beyond language, the realists saw even more uncertainty in how courts interpret earlier cases. The distinction between what is "essential" and "nonessential" in judicial decisions (holdings vs. dicta) is not clear-cut in practice, so later judges can reinterpret past rulings differently. This gives judges a lot of freedom (leeway) and makes it possible for them to choose conflicting rules from the same precedent, increasing indeterminacy in the legal system.

19.

The passage suggests that the realists believed which one of the following to be true of the dicta in a judge’s written opinion?

  1. The judge writing the opinion

    Too Strong: usually

    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% picked this

  2. The appropriateness of the judge’s

    Too Strong

    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% picked this

  3. A consensus concerning what constitutes

    Too Strong: fixed Opposite, if anything

    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% picked this

  4. Correct

    Subsequent judges can consider parts

    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.

    77% picked this

  5. The judge’s decision and the

    Too Strong: usually / easily

    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.

    3% picked this

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