Dissenting opinions: What do we do with them?

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arvcondor
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Dissenting opinions: What do we do with them?

Postby arvcondor » Mon Sep 05, 2011 7:41 pm

Will they ever matter on exams? Should I pay them any attention?

kahechsof
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Re: Dissenting opinions: What do we do with them?

Postby kahechsof » Mon Sep 05, 2011 7:42 pm

Depends on the course.

In conlaw, it may be the current majority opinion.
In other courses, it may be a minority view of other states.

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GeePee
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Re: Dissenting opinions: What do we do with them?

Postby GeePee » Mon Sep 05, 2011 7:57 pm

kahechsof wrote:Depends on the course.

In conlaw, it may be the current majority opinion.
In other courses, it may be a minority view of other states.

These, but there are other possibilities as well:

- Applies the same overall reasoning as the majority, but reaches a different result. Pay attention because this often arises due to a slightly different definition of a key term or weight of factors.

- Points out a strong policy consideration that the majority either failed to consider or might not have weighted strongly.

- Casebook authors/sections of academia/your professor think that the law is wrong, and that this introduced alternative would be preferable because it either interprets precedent more reasonably, better reflects overall policy/themes of the substantive law, or has simply followed previously solid precedent that has waned in applicability due to differences in technology or culture.

This is not an exhaustive list, but I always loved to see dissenting opinions because they highlight a lot of the nuance that gets you points on law school exams. The casebook authors are never forced to include a dissent, and usually only do so when that dissent presents a colorable and pervasive counterargument. When you only get one perspective, it requires a lot more thinking to present viable alternatives to the law.

Geist13
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Re: Dissenting opinions: What do we do with them?

Postby Geist13 » Mon Sep 05, 2011 8:03 pm

Yeah, depends on course. For example, there are couple civ pro cases (Asahi and Burnahm) which have a majority of justices agreeing in result, but totally disagreeing in how to get to that result. So there are multiple analytical approaches floating around, none of which is supported by a majority (or even plurality) of the court. In those cases, the dissents (or concurrences) are just as important as the majority.

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Gamecubesupreme
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Re: Dissenting opinions: What do we do with them?

Postby Gamecubesupreme » Mon Sep 05, 2011 11:54 pm

Also, if your professor spends more time than usual on a case's dissent, make a note of it.

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Heartford
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Re: Dissenting opinions: What do we do with them?

Postby Heartford » Mon Sep 05, 2011 11:55 pm

I don't even read them. If it's important, it will come up in class and I will pay attention then.

ETA: For cases like Asahi where there are like 5 different opinions to read, then I read them because it's obvious that there is some major controversy.

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vanwinkle
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Re: Dissenting opinions: What do we do with them?

Postby vanwinkle » Tue Sep 06, 2011 12:00 am

GeePee wrote:The casebook authors are never forced to include a dissent, and usually only do so when that dissent presents a colorable and pervasive counterargument. When you only get one perspective, it requires a lot more thinking to present viable alternatives to the law.

Gamecubesupreme wrote:Also, if your professor spends more time than usual on a case's dissent, make a note of it.

+1 to both. The more it's discussed the more you need to know it.

Sometimes the majority and dissent opinions are critical contrasts of one another, and the differences highlight what's important about the case. For example, in Torts, you will cover Palsgraf, and you'll read both Cardozo's opinion and Andrews' dissent. Considering the differing POVs of the two judges helps with understanding the concept of proximate cause (as much as anyone can truly understand it, anyway).

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Ford Prefect
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Re: Dissenting opinions: What do we do with them?

Postby Ford Prefect » Tue Sep 06, 2011 12:02 am

I've been reading dissents in the casebooks each time and they've occasionally helped clarify the issue(s).

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kalvano
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Re: Dissenting opinions: What do we do with them?

Postby kalvano » Tue Sep 06, 2011 12:46 am

And apparently my Con Law prof liked it when people discussed dissents on exams in terms of how the Court might look at something in a new way.

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shepdawg
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Re: Dissenting opinions: What do we do with them?

Postby shepdawg » Tue Sep 06, 2011 1:22 am

In torts, it shows a different way to apply the facts to the law (spin the facts a different way). This is what you need to do on the exam. Read and learn.

NotMyRealName09
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Re: Dissenting opinions: What do we do with them?

Postby NotMyRealName09 » Tue Sep 06, 2011 4:30 pm

Yes, don't ignore them. If you haven't realized this yet, your casebook does not generally contain entire opinions. They are edited down. Thus, if the dissent is there, it is there for a rational reason. Generally, it helps you to understand what the majority opinion is NOT saying.




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