Question: Q #15, (LR), Preptest 21, Section 3 Forum

[NaturalLawyer]

Does anyone know why the answer is (E) instead of (B)?

Mystified, stupefied, petrified. (Was going for a kind of Don King thing...)

Thanks!

[harut44]

The answer is not B because the stimulus (politician's argument) doesn't talk about different roles of judges or the duties they are to perform. Rather, it only mentions one thing about jail sentences and lenient and non lenient judges. So if that principle were adopted (answer choice b) it would not provide much basis to counter the public advocate's argument. The pub adv argues that judges should have discretionary power in order to apply leniency in cases where it is needed and the basis of his argument is that of the jury.

Answer choice E is correct because it provides a logical basis that forms to what the politician said in the first place. There are undesirable consequences with judges being lenient with sentences, so you should mandate a sentence which would better that problem. So according to E if you modify a system of justice (2 year mandatory sentencing) and the results from that change is undesirable then you would only reverse that change (2 year mandatory sentence) only if you cannot modify the change again to rid of the undesirable consequence. That's kind of a mouth full but the gist of that is the politician wants a change pol adv does not. So if the politician gets the change he wins. If the politician gets the change and it sucks he can still win by modifying the change to not suck. If the modification sucks then the politician ultimately fails and the political advocate wins because it goes back to the original state where judges choose sentencing.

[NaturalLawyer]

The answer is not B because the stimulus (politician's argument) doesn't talk about different roles of judges or the duties they are to perform. Rather, it only mentions one thing about jail sentences and lenient and non lenient judges. So if that principle were adopted (answer choice b) it would not provide much basis to counter the public advocate's argument. The pub adv argues that judges should have discretionary power in order to apply leniency in cases where it is needed and the basis of his argument is that of the jury.

Answer choice E is correct because it provides a logical basis that forms to what the politician said in the first place. There are undesirable consequences with judges being lenient with sentences, so you should mandate a sentence which would better that problem. So according to E if you modify a system of justice (2 year mandatory sentencing) and the results from that change is undesirable then you would only reverse that change (2 year mandatory sentence) only if you cannot modify the change again to rid of the undesirable consequence. That's kind of a mouth full but the gist of that is the politician wants a change pol adv does not. So if the politician gets the change he wins. If the politician gets the change and it sucks he can still win by modifying the change to not suck. If the modification sucks then the politician ultimately fails and the political advocate wins because it goes back to the original state where judges choose sentencing.

I'm not sure if I understand your explanation of why (B) is wrong and (E) is right.

First of all, the questions asks which of the principles, if valid, provides the strongest ground for the politician for arguing against the public advocate. (B) claims that "a system of justice should clearly define what the specific actions are that judges are to perform within the system."
Well, if the principle (stated by (B)) is true, then it would imply that when the judge must decide the length of jail-time when sentencing a convicted criminal, there shouldn't be ambivalence about how long the sentence should be. By making mandatory jail sentences as part of the law, it is clearly defined for the judge what the sentence should be in those cases. So doesn't (B) help support the politician's case?

As for (E) you say that "Answer choice (E) is correct because it provides a logical basis that forms to what the politician said in the first place." I don't understand why. The politician never mentioned in the stimulus anything about ameliorating the kind of undesirable consequences that is claimed to exist by the public advocate. The undesirable consequence here is that now, sometimes, juries do not return an accurate verdict. It just doesn't seem to me like the truth of (E) would help show why the public advocate is wrong.

But (B) certainly does seem to do that by claiming that a system of justice needs clear rules that dictate how a judge must act within a certain situation. By creating the mandatory jail sentences, there is now a rule that defines, in certain situations, what the jail sentence must be. And so two judges -- one severe, the other lenient -- will not radically differ in their sentences.

Your point that the stimulus doesn't mention anything about "different roles of judges or the duties that they are to perform" doesn't seem quite right. The principle in (B) is about actions. When judges sentence those who have been convicted to a certain amount of time, that act of sentencing surely is an action.

But perhaps I misread your point, or I am just deeply confused. At any rate, thanks for the reply!

Still quite miffed!

[harut44]

I'm not sure if I understand your explanation of why (B) is wrong and (E) is right.

First of all, the questions asks which of the principles, if valid, provides the strongest ground for the politician for arguing against the public advocate. (B) claims that "a system of justice should clearly define what the specific actions are that judges are to perform within the system."
Well, if the principle (stated by (B)) is true, then it would imply that when the judge must decide the length of jail-time when sentencing a convicted criminal, there shouldn't be ambivalence about how long the sentence should be. By making mandatory jail sentences as part of the law, it is clearly defined for the judge what the sentence should be in those cases. So doesn't (B) help support the politician's case?

As for (E) you say that "Answer choice (E) is correct because it provides a logical basis that forms to what the politician said in the first place." I don't understand why. The politician never mentioned in the stimulus anything about ameliorating the kind of undesirable consequences that is claimed to exist by the public advocate. The undesirable consequence here is that now, sometimes, juries do not return an accurate verdict. It just doesn't seem to me like the truth of (E) would help show why the public advocate is wrong.

But (B) certainly does seem to do that by claiming that a system of justice needs clear rules that dictate how a judge must act within a certain situation. By creating the mandatory jail sentences, there is now a rule that defines, in certain situations, what the jail sentence must be. And so two judges -- one severe, the other lenient -- will not radically differ in their sentences.

Your point that the stimulus doesn't mention anything about "different roles of judges or the duties that they are to perform" doesn't seem quite right. The principle in (B) is about actions. When judges sentence those who have been convicted to a certain amount of time, that act of sentencing surely is an action.

But perhaps I misread your point, or I am just deeply confused. At any rate, thanks for the reply!

Still quite miffed!

The stimulus is about a law that needs to be changed about the LAWS of sentencing. So you commit X crime you get 2 years. The law has nothing to to do with the role of the judge. The judge still sets the sentences, right? It's just mandated to be set at 2 years for X crime.

The first bolded sentence in your post, no it doesn't help because the stimulus doesn't talk about any roles but it talks about the law of how long the sentence is. And the politician argues that they shouldn't be aloud to be too lenient or strict. Nothing was mentioned about the role.

Second bold, no he didn't mention anything about it. Look at it and compare to the other answer choices. Here's why it's correct based on the logic from what I said before but slightly modified: "That's kind of a mouth full but the gist of that is the politician wants a change in the law(not the roles of the judge) pol adv does not. So if the politician gets the change he wins. If the politician gets the change and it sucks he can still win by modifying the change to not suck. If the modification sucks then the politician ultimately fails and the political advocate wins because it goes back to the original state where judges choose sentencing."

[NaturalLawyer]

You say that:
"The stimulus is about a law that needs to be changed about the LAWS of sentencing. So you commit X crime you get 2 years. The law has nothing to to do with the role of the judge."

But what the politician says is that because of the mandatory jail sentences, "no longer are there two kinds of justice, the kind dispensed by lenient judges and the kind dispensed by severe ones."

To dispense is just to "give out" or "administer". I would have thought that when you give out or administer something, you perform an action. Now the judges, after the mandate had been put in place as law, must act in accordance with that mandate. Nevertheless, the judge surely still acts. So, according to the stimulus, it is no longer the case that there are two kinds of justice that are dispensed by lenient and severe judges, but simply one kind of justice dispensed by both lenient and severe judges. Well, in that case, all judges (both lenient and severe) must act in accordance with that same two-year mandate. But what judges surely do is act -- hopefully in accordance with the right rule of law and in accordance with the correct standard of justice. Reflecting more closely on the argument of public advocate, it seems even more clear that the debate is whether or not judges should maintain the capacity to choose how long a jail-sentence should be. The public advocate claims yes, and the politician claims no. The politician says no because judges should always act in accordance with the same standard of justice, that does not vary according to the disposition of the judge.

I'm still unsure of why (B) is wrong. Your reason that the stimulus is not at all about actions just doesn't seem right.

Perhaps others can also chime in and show what I am failing to understand??

Don't mean to just be stubborn, although I am definitely a stubborn person. I simply have not seen why I am wrong yet, which may simply be due to a defect on my part.

Thanks!

[OrdinarilySkilled]

The part you seem to be missing is that the correct principle is the one that provides the strongest ground for the politician to argue against the public adv. Answer B is loosely along the lines of the politician's argument, but it's not really something for the politician to use as an argument against the public adv. because it is only about judges and they are talking about laws. Answer E provides the best ground for argument because it calls out the public adv. as suggesting an issue with the law that can be fixed in most situations and doesn't have to be a set law (or repealed law in this case).

Your comparing the answer choices and determining which best answers the stated question. Don't get caught up thinking every "wrong" answer cannot be construed as "right".

[NaturalLawyer]

Oh and one more point about (E).

(E), I think, is a pretty strange principle. It states that:
"Changes in a system of justice that produce undesirable consequences should be reversed only if it is not feasible to ameliorate those undesirable consequences through further modification."

One reason why this is strange is that when you modify something, say a law, it seems like you are changing it. You may not be changing it wholesale, since modifying implies changing only an aspect of something, but there is certainly a change that occurs to a law if it is modified.

Also, as a principle, (E) just seems so weak. Say I support some law X. You argue that because of X, there have been some very bad consequences and therefore the law should be changed. I say to you: "Well, sure, you are right that there have been very bad consequences. But here is my counter-argument: we should only change the law if it we can't modify the law so as to get rid of those bad consequences." You can simply shrug your shoulder and claim that invoking that rather thin principle has not helped to weaken her argument.

It still seems like (B) IF VALID, supports the politician in a strong way since the mandatory jail sentences that had become law surely does help "clearly define what the specific actions are that judges are to perform within the system." When a certain range of crimes are involved, there is now a clear law that defines how a judge must sentence the guilty. The judge just simply looks at the rule-book and says "okay good, it is clear what sentence I must impose now. Here I go!" (An action then follows, namely, the act of imposing.)

Arggggghhhhh! It just seems so clear to me! But I may just have to drop this question and move on. Although I do find the discussion interesting.

Thanks for the post guys! (Even if I still disagree!)

[bravos89]

Hopefully this helps. Under Choice Answer B, it says that a system of justice should clearly define what the specific actions are that judges are to perform within the system. The law passing had no effect on this. If this law is repealed, the judges role is clearly defined as having discretionary powers and the "action" that is defined as their job is to hand out the sentence they see fit. Keeping the law does not make the actions they have to perform more clearly defined. It simply changes the action from being defined as giving out discretionary sentences to giving out a mandatory sentence. Their roles are changed but I don't think it can be argued that either action is less clearly defined. In either case, no judge should be confused about what their job is so you cannot argue that the actions that is required of the judge under either system is not clearly defined. An action being clearly defined does not mean that the judge is not allowed any freedom on what to do, merely that they must know what their specific role is within the legal system.

I don't think answer E is the greatest answer in the world but it's better than B as the Public Advocate's argument is basically that the law should be repealed. E, if adopted, prevents this from happening as the argument has clearly not established that it is not feasible to ameliorate the undesirable consequences through other means. Since repeal can only happen if this is the case and it has not established that this is the case, answer E prevents the repeal of the measure.

[NaturalLawyer]

Hopefully this helps. Under Choice Answer B, it says that a system of justice should clearly define what the specific actions are that judges are to perform within the system. The law passing had no effect on this. If this law is repealed, the judges role is clearly defined as having discretionary powers and the "action" that is defined as their job is to hand out the sentence they see fit. Keeping the law does not make the actions they have to perform more clearly defined. It simply changes the action from being defined as giving out discretionary sentences to giving out a mandatory sentence. Their roles are changed but I don't think it can be argued that either action is less clearly defined. In either case, no judge should be confused about what their job is so you cannot argue that the actions that is required of the judge under either system is not clearly defined. An action being clearly defined does not mean that the judge is not allowed any freedom on what to do, merely that they must know what their specific role is within the legal system.

I don't think answer E is the greatest answer in the world but it's better than B as the Public Advocate's argument is basically that the law should be repealed. E, if adopted, prevents this from happening as the argument has clearly not established that it is not feasible to ameliorate the undesirable consequences through other means. Since repeal can only happen if this is the case and it has not established that this is the case, answer E prevents the repeal of the measure.

Thanks for that analysis! I do see now why (E) at least can be the basis for an answer to the politician.

Thank you for that thoughtful answer!

I think your analysis of (B) must be the right analysis. The basic idea is that the action that the judges perform is clearly defined whether or not there is a mandatory sentence since in both cases the action is clearly defined as either: (a) giving out mandatory sentences, or (b) giving out discretionary sentences.

This is actually pretty tricky. I had thought that the reason why the mandatory sentences made the actions of the judges more clearly defined was that although on ONE level of description a judge that gives out a mandatory sentence and a judge that gives out a discretionary sentence are both performing actions that are clearly defined there is another description under which the action that the judge must perform, if mandatory sentences exist, is more clearly defined.

So suppose there are no mandatory sentences and only discretionary sentences. Now imagine the judge asks: "what should I do? Should I sentence him 2 years or 3 years?" I would think the action of sentencing someone 2 years is a different action from sentencing someone 3 years. So those are two different actions that the judge can perform.
But now imagine there are mandatory sentences that says that the judge must sentence the convicted criminal (under those circumstances) 2 years. Now it seems that the other possible action that the judge could have performed in the case where there are only discretionary sentences is no longer an option. So now it seems like it is more clearly defined what the judge must do. He must now sentence the criminal 2 years.

Of course it is true that on one level, the system does clearly define what every judge must do. It could even simply state that the judge should simply do whatever she or he wants to do. That would also be a clearly defined action as well. But I guess I thought that (B) would make it more clear what the judge should do because of the mandatory sentences.

Anyways, thank you so much for your answer. I see at least what the testmakers had in mind in making (E) the correct answer. There is still something that bothers me about this question, but I'm just going to move on now. Maybe if I put in more study, in the future I'll see more clearly why I was wrong about this question.

Time to get back to hard work!

Again, I appreciate everyone's feedback.