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# Currently, legal scholars agree that in some cases legal rules do not

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Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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17 Apr 2019, 06:26
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New Project RC Butler 2019 - Practice 2 RC Passages Everyday
Passage # 149, Date : 16-APR-2019
This post is a part of New Project RC Butler 2019. Click here for Details

Currently, legal scholars agree that in some cases
legal rules do not specify a definite outcome. These
scholars believe that such indeterminacy results
from the vagueness of language: the boundaries of
(5) the application of a term are often unclear.
Nevertheless, they maintain that the system of legal
rules by and large rests on clear core meanings that
do determine definite outcomes for most cases.
Contrary to this view, an earlier group of legal
(10) philosophers, called “realists,” argued that
indeterminacy pervades every part of the law.

The realists held that there is always a cluster of
rules relevant to the decision in any litigated case.
For example, deciding whether an aunt’s promise to
(15) pay her niece a sum of money if she refrained from
smoking is enforceable would involve a number of
rules regarding such issues as offer, acceptance, and
revocation. Linguistic vagueness in any one of these
rules would affect the outcome of the case, making
(20) possible multiple points of indeterminacy, not just
one or two, in any legal case.

For the realists, an even more damaging kind of
indeterminacy stems from the fact that in a
common-law system based on precedent, a judge’s
(25) decision is held to be binding on judges in
subsequent similar cases. Judicial decisions are
expressed in written opinions, commonly held to
consist of two parts: the holding (the decision for
or against the plaintiff and the essential grounds or
(30) legal reasons for it, that is, what subsequent judges
are bound by), and the dicta (everything in an
opinion not essential to the decision, for example,
basis of the outcome). The realists argued that in
(35) practice the common-law system treats the
“holding/dicta” distinction loosely. They pointed
out that even when the judge writing an opinion
characterizes part of it as “the holding,” judges
writing subsequent opinions, although unlikely to
(40) dispute the decision itself, are not bound by the
original judge’s perception of what was essential to
the decision. Later judges have tremendous leeway
in being able to redefine the holding and the dicta
in a precedential case. This leeway enables judges to
(45) choose which rules of law formed the basis of the
decision in the earlier case. When judging almost
any case, then, a judge can find a relevant
precedential case which, in subsequent opinions,
has been read by one judge as stating one legal
(50) rule, and by another judge as stating another,
possibly contradictory one. A judge thus faces an
indeterminate legal situation in which he or she has
to choose which rules are to govern the case at
hand.
1. According to the passage, the realists argued that which one of the following is true of a common-law system?

(A) It gives rise to numerous situations in which the decisions of earlier judges are found to be in error by later judges.
(B) It possesses a clear set of legal rules in theory, but in practice most judges are unaware of the strict meaning of those rules.
(C) Its strength lies in the requirement that judges decide cases according to precedent rather than according to a set of abstract principles.
(D) It would be improved if judges refrained from willfully misinterpreting the written opinions of prior judges.
(E) It treats the difference between the holding and the dicta in a written opinion rather loosely in practice.

2. According to the passage, which one of the following best describes the relationship between a judicial holding and a judicial decision?

(A) The holding is not commonly considered binding on subsequent judges, but the decision is.
(B) The holding formally states the outcome of the case, while the decision explains it.
(C) The holding explains the decision but does not include it.
(D) The holding consists of the decision and the dicta.
(E) The holding sets forth and justifies a decision.

3. The information in the passage suggests that the realists would most likely have agreed with which one of the following statements about the reaction of judges to past interpretations of a precedential case, each of which states a different legal rule?

(A) The judges would most likely disagree with one or more of the interpretations and overturn the earlier judges’ decisions.
(B) The judges might differ from each other concerning which of the interpretations would apply in a given case.
(C) The judges probably would consider themselves bound by all the legal rules stated in the interpretations.
(D) The judges would regard the lack of unanimity among interpretations as evidence that no precedents existed.
(E) The judges would point out in their holdings the inherent contradictions arising from the earlier judges’ differing interpretations.

4. It can be inferred from the passage that most legal scholars today would agree with the realists that

(A) linguistic vagueness can cause indeterminacy regarding the outcome of a litigated case
(B) in any litigated case, several different and possibly contradictory legal rules are relevant to the decision of the case
(C) the distinction between holding and dicta in a written opinion is usually difficult to determine in practice
(D) the boundaries of applicability of terms may sometimes be difficult to determine, but the core meanings of the terms are well established
(E) a common-law system gives judges tremendous leeway in interpreting precedents, and contradictory readings of precedential cases can usually be found

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

(A) The judge writing the opinion is usually careful to specify those parts of the opinion he or she considers part of the dicta.
(B) The appropriateness of the judge’s decision would be disputed by subsequent judges on the basis of legal rules expressed in the dicta.
(C) A consensus concerning what constitutes the dicta in a judge’s opinion comes to be fixed over time as subsequent similar cases are decided.
(D) Subsequent judges can consider parts of what the original judge saw as the dicta to be essential to the original opinion.
(E) The judge’s decision and the grounds for it are usually easily distinguishable from the dicta.

6. Which one of the following best describes the overall organization of the passage?

(A) A traditional point of view is explained and problems arising from it are described.
(B) Two conflicting systems of thought are compared point for point and then evaluated.
(C) A legal concept is defined and arguments justifying that definition are refuted.
(D) Two viewpoints on an issue are briefly described and one of those viewpoints is discussed at greater length.
(E) A theoretical description of how a system develops is contrasted with the actual practices characterizing the system.

7. Which one of the following titles best reflects the content of the passage?

(A) Legal Indeterminacy: The Debate Continues
(B) Holding Versus Dicta: A Distinction Without a Difference
(C) Linguistic Vagueness: Is It Circumscribed in Legal Terminology?
(D) Legal Indeterminacy: The Realist’s View of Its Scope
(E) Legal Rules and the Precedential System: How Judges Interpret the Precedents

• Source: LSAT Official PrepTest 10 (February 1994)
• Difficulty Level: 700

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Re: Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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25 Apr 2019, 03:31
Can any 1 pls explain question 1, 2
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Re: Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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25 Apr 2019, 09:57
1
Explanation

Topic and Scope:

The vagueness of the law; specifically, the view of a group of legal philosophers called “realists” that the law is inherently indeterminate.

Purpose and Main Idea:

Instead of providing his own argument, the author’s purpose is to communicate the argument that the realists made, the main idea that’s summed up in line 11: “Indeterminacy pervades every part of the law.”

Paragraph Structure:

Para 1 begins with the current view about which “legal scholars agree” (line 1): There’s some vagueness in the way law is written and hence applied, but the foundation for the system is basically solid and based on clarity. The “earlier” (no hint about how much earlier) realists begged to differ.

Para 2 uses the example about the aunt and niece to illustrate the number of different rules that might apply in a given case, and thus the realists’ first point—that any vagueness in any of those rules will contribute to the indeterminacy of the outcome.

Para 3’s key signal is at line 22: “an even more damaging kind of indeterminacy” tells us (if the sheer length of Para 3 didn’t already do so) that this is the meat of the realists’ argument, taking us beyond the vagueness of language to the uncertainty of precedent. First we get the factual background: Judges’ decisions, meant to be binding precedents, are composed of holding and dicta. The holding is what later judges are supposed to be guided by, while the dicta are the inessential points of law. Yet according to the realists, this holding/dicta distinction is observed only loosely. Judges are free to redefine each in their subsequent opinions, and in the end a single court case can create multiple and contradictory precedents—hence, indeterminacy for judges who are presumably looking for concrete precedents to rely upon.

The Big Picture:

• While most passages consist of the author’s argument, be ready for passages during which the author offers no personal point of view and instead reports on someone else’s argument.

• The lengthy Para 3 offers a fairly typical LSAT ploy. Between lines 26-46 there’s a lot of complex detail, and it’s easy to get bogged down. Yet if you just hang in there until line 46, the word “then” comes along to signal a conclusion, and the last two sentences sum it all up pretty clearly. The point? When in doubt, keep reading! The author will often restate matters more simply and clearly later on.

1. According to the passage, the realists argued that which one of the following is true of a common-law system?

Explanation

The phrase “common-law system” appears first at line 24, but its second appearance (line 35) is the one that leads to the right answer. (E) is practically a verbatim restatement of lines 34-36.

(A) That the common-law system allows judges to redefine legal issues and pick and choose among them—which is what (E) implies—doesn’t mean that judges are finding earlier colleagues “in error.” In any event the specific issue of judicial error, while perhaps familiar to you from everyday reading, never comes up here.

(B) Remember, you’re asked for something that “the realists argued.” They would never claim that the legal system is “clear” in either theory or practice, and certainly don’t mention judges’ “unawareness” as part of the problem.

(C) seems to distort lines 22-26. To the realists, the reliance of a common-law system on precedent is the source not of “strength,” but of “an even more damaging kind of indeterminacy.” Moreover (C)’s distinction between precedent and abstract principles is bogus. Insofar as we can tell from the passage, a legal precedent, while based on a specific court case, would in fact become an “abstract” principle of law on which other judges should rely.

(D) The realists made no charge of “willful misinterpretation.” To them, the leeway that judges have to redefine precedents is built into the system, not the result of judges’ misconduct. Moreover, the author never reports on how the realists would “improve” the system (if indeed that was ever part of their scope; they were philosophers, after all, not necessarily legal reformers).

• When a question cites a specific phrase from the passage like “common-law system” here—or “eyewitness style” in Q.11—use it like a line reference, to help you find the answer. And don’t jump at the first such reference you see! Be thorough.

2. According to the passage, which one of the following best describes the relationship between a judicial holding and a judicial decision?

Explanation

This question clearly sends you to the first half of Para 3, where we learn that the holding is one of the two parts of the decision (the dicta are the other part). (E)’s verbs (“sets forth” and “justifies”) act neatly to paraphrase lines 28-30.

(A) is right in alleging that the decision is supposed to be binding on later judges (lines 24-26), but wrong in contrasting that with the holding. The holding is supposed to be the binding part (lines 30-31).

(B) and (C) are both flat-out incorrect. The holding both announces and explains the decision.

(D) Close but no cigar. The decision consists of the holding and the dicta.

• A true “detail question,” like this one, demands care. Don’t let time constraints force you to read sloppily and incompletely.

Hope it helps

gaurav2m wrote:
Can any 1 pls explain question 1, 2

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Re: Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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25 Apr 2019, 11:19
New Project RC Butler 2019 - Practice 2 RC Passages Everyday
Passage # 149, Date : 16-APR-2019
This post is a part of New Project RC Butler 2019. Click here for Details

Currently, legal scholars agree that in some cases
legal rules do not specify a definite outcome. These
scholars believe that such indeterminacy results
from the vagueness of language: the boundaries of
(5) the application of a term are often unclear.
Nevertheless, they maintain that the system of legal
rules by and large rests on clear core meanings that
do determine definite outcomes for most cases.
Contrary to this view, an earlier group of legal
(10) philosophers, called “realists,” argued that
indeterminacy pervades every part of the law.

The realists held that there is always a cluster of
rules relevant to the decision in any litigated case.
For example, deciding whether an aunt’s promise to
(15) pay her niece a sum of money if she refrained from
smoking is enforceable would involve a number of
rules regarding such issues as offer, acceptance, and
revocation. Linguistic vagueness in any one of these
rules would affect the outcome of the case, making
(20) possible multiple points of indeterminacy, not just
one or two, in any legal case.

For the realists, an even more damaging kind of
indeterminacy stems from the fact that in a
common-law system based on precedent, a judge’s
(25) decision is held to be binding on judges in
subsequent similar cases. Judicial decisions are
expressed in written opinions, commonly held to
consist of two parts: the holding (the decision for
or against the plaintiff and the essential grounds or
(30) legal reasons for it, that is, what subsequent judges
are bound by), and the dicta (everything in an
opinion not essential to the decision, for example,
basis of the outcome). The realists argued that in
(35) practice the common-law system treats the
“holding/dicta” distinction loosely. They pointed
out that even when the judge writing an opinion
characterizes part of it as “the holding,” judges
writing subsequent opinions, although unlikely to
(40) dispute the decision itself, are not bound by the
original judge’s perception of what was essential to
the decision. Later judges have tremendous leeway
in being able to redefine the holding and the dicta
in a precedential case. This leeway enables judges to
(45) choose which rules of law formed the basis of the
decision in the earlier case. When judging almost
any case, then, a judge can find a relevant
precedential case which, in subsequent opinions,
has been read by one judge as stating one legal
(50) rule, and by another judge as stating another,
possibly contradictory one. A judge thus faces an
indeterminate legal situation in which he or she has
to choose which rules are to govern the case at
hand.
1. According to the passage, the realists argued that which one of the following is true of a common-law system?

(A) It gives rise to numerous situations in which the decisions of earlier judges are found to be in error by later judges.
(B) It possesses a clear set of legal rules in theory, but in practice most judges are unaware of the strict meaning of those rules.
(C) Its strength lies in the requirement that judges decide cases according to precedent rather than according to a set of abstract principles.
(D) It would be improved if judges refrained from willfully misinterpreting the written opinions of prior judges.
(E) It treats the difference between the holding and the dicta in a written opinion rather loosely in practice.

2. According to the passage, which one of the following best describes the relationship between a judicial holding and a judicial decision?

(A) The holding is not commonly considered binding on subsequent judges, but the decision is.
(B) The holding formally states the outcome of the case, while the decision explains it.
(C) The holding explains the decision but does not include it.
(D) The holding consists of the decision and the dicta.
(E) The holding sets forth and justifies a decision.

3. The information in the passage suggests that the realists would most likely have agreed with which one of the following statements about the reaction of judges to past interpretations of a precedential case, each of which states a different legal rule?

(A) The judges would most likely disagree with one or more of the interpretations and overturn the earlier judges’ decisions.
(B) The judges might differ from each other concerning which of the interpretations would apply in a given case.
(C) The judges probably would consider themselves bound by all the legal rules stated in the interpretations.
(D) The judges would regard the lack of unanimity among interpretations as evidence that no precedents existed.
(E) The judges would point out in their holdings the inherent contradictions arising from the earlier judges’ differing interpretations.

4. It can be inferred from the passage that most legal scholars today would agree with the realists that

(A) linguistic vagueness can cause indeterminacy regarding the outcome of a litigated case
(B) in any litigated case, several different and possibly contradictory legal rules are relevant to the decision of the case
(C) the distinction between holding and dicta in a written opinion is usually difficult to determine in practice
(D) the boundaries of applicability of terms may sometimes be difficult to determine, but the core meanings of the terms are well established
(E) a common-law system gives judges tremendous leeway in interpreting precedents, and contradictory readings of precedential cases can usually be found

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

(A) The judge writing the opinion is usually careful to specify those parts of the opinion he or she considers part of the dicta.
(B) The appropriateness of the judge’s decision would be disputed by subsequent judges on the basis of legal rules expressed in the dicta.
(C) A consensus concerning what constitutes the dicta in a judge’s opinion comes to be fixed over time as subsequent similar cases are decided.
(D) Subsequent judges can consider parts of what the original judge saw as the dicta to be essential to the original opinion.
(E) The judge’s decision and the grounds for it are usually easily distinguishable from the dicta.

6. Which one of the following best describes the overall organization of the passage?

(A) A traditional point of view is explained and problems arising from it are described.
(B) Two conflicting systems of thought are compared point for point and then evaluated.
(C) A legal concept is defined and arguments justifying that definition are refuted.
(D) Two viewpoints on an issue are briefly described and one of those viewpoints is discussed at greater length.
(E) A theoretical description of how a system develops is contrasted with the actual practices characterizing the system.

7. Which one of the following titles best reflects the content of the passage?

(A) Legal Indeterminacy: The Debate Continues
(B) Holding Versus Dicta: A Distinction Without a Difference
(C) Linguistic Vagueness: Is It Circumscribed in Legal Terminology?
(D) Legal Indeterminacy: The Realist’s View of Its Scope
(E) Legal Rules and the Precedential System: How Judges Interpret the Precedents

• Source: LSAT Official PrepTest 10 (February 1994)
• Difficulty Level: Will update after 30+ timers attempts

I TOOK AROUND 5 MINS TO GET THE GIST OF PASSAGE, MIND GETS DISTRACTED, BUT NEVER THE LESS, LET ME TELL YOU WHAT I DID

2/7 WRONG (TITLE QUESTION WAS WEIRD)

LET US BEGIN ANALYSIS, SHALL WE?

1. According to the passage, the realists argued that which one of the following is true of a common-law system?

(A) It gives rise to numerous situations in which the decisions of earlier judges are found to be in error by later judges.
SOMEWHERE IN THE THIRD PARA, THERE'S WRITTEN, UNLIKELY TO DISPUTE... BLAH BLAH, SO NOT THIS ONE DEFINITELY
(B) It possesses a clear set of legal rules in theory, but in practice most judges are unaware of the strict meaning of those rules.
EVERYBODY KNOWS, THEY ARE BENDING IT TO THEIR WILL SO THEY KNOW ALL TOO WELL
(C) Its strength lies in the requirement that judges decide cases according to precedent rather than according to a set of abstract principles.
CLASSIC COMPARISON TRAP, I NEVER READ A COMPARISON THERE
(D) It would be improved if judges refrained from willfully misinterpreting the written opinions of prior judges.
NO SUGGESTIONS ABOUT ANY IMPROVEMENT, AND THEY ARE NOT MISINTERPRETING, THEY JUST HAVE ANOTHER OPINION
(E) It treats the difference between the holding and the dicta in a written opinion rather loosely in practice.
THIRD PARA, READ AGAIN, IT'S LIKE A WORD MATCH

2. According to the passage, which one of the following best describes the relationship between a judicial holding and a judicial decision?
TOOK ME 3 MINS TO JUST THINK ON THIS ONE
(A) The holding is not commonly considered binding on subsequent judges, but the decision is.
IT ACTUALLY KINDA IS, EXACT OPPOSITE OPTION TO WHAT WE ARE LOOKING FOR
(B) The holding formally states the outcome of the case, while the decision explains it.
TRICKY BUT I COULDN'T FIND ANYTHING THAT SAYS SUCH A THING AS SECOND PART
(C) The holding explains the decision but does not include it.
SET THEORY, BESIDES THE BRACKET STARTS WITH THE WORD DECISION THAT INCLUDES....
(D) The holding consists of the decision and the dicta.
ANOTHER ERROR, PASSAGE SAYS, DE INCLUDES H AND DI. THIS OPTION SAYS STH ELSE
(E) The holding sets forth and justifies a decision.
AN ANSWER BY ELIMINATION, JUSTIFIES IS THE GIVEAWAY

3. The information in the passage suggests that the realists would most likely have agreed with which one of the following statements about the reaction of judges to past interpretations of a precedential case, each of which states a different legal rule?
I GOT THIS WRONG, AND I'D SUGGEST YOU SEE ANOTHER SOLUTION BUT I'VE TRIED IT AGAIN THIS WAY
(A) The judges would most likely disagree with one or more of the interpretations and overturn the earlier judges’ decisions.
THAT WOULD HAPPEN IN THE SYSTEM STATED NOT THE SYSTEM THAT QUESTION CREATED
(B) The judges might differ from each other concerning which of the interpretations would apply in a given case.
DIFFERENT RULES, DIFFERING OPINIONS FOR SAME CASE
(C) The judges probably would consider themselves bound by all the legal rules stated in the interpretations.
NOT RELEVANT
(D) The judges would regard the lack of unanimity among interpretations as evidence that no precedents existed.
NOT RELEVANT
(E) The judges would point out in their holdings the inherent contradictions arising from the earlier judges’ differing interpretations.
EARLIER JUDGES ARE ACTUALLY NOW OUT OF PICTURE, SO... YOU KNOW

4. It can be inferred from the passage that most legal scholars today would agree with the realists that

(A) linguistic vagueness can cause indeterminacy regarding the outcome of a litigated case
TRUE
(B) in any litigated case, several different and possibly contradictory legal rules are relevant to the decision of the case
TRY TO GET THE POINT
(C) the distinction between holding and dicta in a written opinion is usually difficult to determine in practice
WE DO NOT KNOW IF THE CONCEPT IS KNOWN TO OUR SCHOLARS
(D) the boundaries of applicability of terms may sometimes be difficult to determine, but the core meanings of the terms are well established
SAME AS C
(E) a common-law system gives judges tremendous leeway in interpreting precedents, and contradictory readings of precedential cases can usually be found
SAME AS C

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

(A) The judge writing the opinion is usually careful to specify those parts of the opinion he or she considers part of the dicta.
THEY ARE CHEATING AND CALLING THEM HOLDING SO...
(B) The appropriateness of the judge’s decision would be disputed by subsequent judges on the basis of legal rules expressed in the dicta.
(C) A consensus concerning what constitutes the dicta in a judge’s opinion comes to be fixed over time as subsequent similar cases are decided.
(D) Subsequent judges can consider parts of what the original judge saw as the dicta to be essential to the original opinion.
(E) The judge’s decision and the grounds for it are usually easily distinguishable from the dicta.
SAME AS A

6. Which one of the following best describes the overall organization of the passage?

(A) A traditional point of view is explained and problems arising from it are described.
(B) Two conflicting systems of thought are compared point for point and then evaluated.
(C) A legal concept is defined and arguments justifying that definition are refuted.
(D) Two viewpoints on an issue are briefly described and one of those viewpoints is discussed at greater length.
(E) A theoretical description of how a system develops is contrasted with the actual practices characterizing the system.

7. Which one of the following titles best reflects the content of the passage?

(A) Legal Indeterminacy: The Debate Continues
(B) Holding Versus Dicta: A Distinction Without a Difference
TOO NARROW
(C) Linguistic Vagueness: Is It Circumscribed in Legal Terminology?
NOPE.... A IS BETTER
(D) Legal Indeterminacy: The Realist’s View of Its Scope
I'M SCEPTICAL ABOUT THE WORD SCOPE PLZ EXPLAIN IF ANYONE CAN
(E) Legal Rules and the Precedential System: How Judges Interpret the Precedents
TELL ME HOW DO THEY INTERPRET
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Re: Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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25 Apr 2019, 11:21
Explanation

Topic and Scope:

The vagueness of the law; specifically, the view of a group of legal philosophers called “realists” that the law is inherently indeterminate.

Purpose and Main Idea:

Instead of providing his own argument, the author’s purpose is to communicate the argument that the realists made, the main idea that’s summed up in line 11: “Indeterminacy pervades every part of the law.”

Paragraph Structure:

Para 1 begins with the current view about which “legal scholars agree” (line 1): There’s some vagueness in the way law is written and hence applied, but the foundation for the system is basically solid and based on clarity. The “earlier” (no hint about how much earlier) realists begged to differ.

Para 2 uses the example about the aunt and niece to illustrate the number of different rules that might apply in a given case, and thus the realists’ first point—that any vagueness in any of those rules will contribute to the indeterminacy of the outcome.

Para 3’s key signal is at line 22: “an even more damaging kind of indeterminacy” tells us (if the sheer length of Para 3 didn’t already do so) that this is the meat of the realists’ argument, taking us beyond the vagueness of language to the uncertainty of precedent. First we get the factual background: Judges’ decisions, meant to be binding precedents, are composed of holding and dicta. The holding is what later judges are supposed to be guided by, while the dicta are the inessential points of law. Yet according to the realists, this holding/dicta distinction is observed only loosely. Judges are free to redefine each in their subsequent opinions, and in the end a single court case can create multiple and contradictory precedents—hence, indeterminacy for judges who are presumably looking for concrete precedents to rely upon.

The Big Picture:

• While most passages consist of the author’s argument, be ready for passages during which the author offers no personal point of view and instead reports on someone else’s argument.

• The lengthy Para 3 offers a fairly typical LSAT ploy. Between lines 26-46 there’s a lot of complex detail, and it’s easy to get bogged down. Yet if you just hang in there until line 46, the word “then” comes along to signal a conclusion, and the last two sentences sum it all up pretty clearly. The point? When in doubt, keep reading! The author will often restate matters more simply and clearly later on.

1. According to the passage, the realists argued that which one of the following is true of a common-law system?

Explanation

The phrase “common-law system” appears first at line 24, but its second appearance (line 35) is the one that leads to the right answer. (E) is practically a verbatim restatement of lines 34-36.

(A) That the common-law system allows judges to redefine legal issues and pick and choose among them—which is what (E) implies—doesn’t mean that judges are finding earlier colleagues “in error.” In any event the specific issue of judicial error, while perhaps familiar to you from everyday reading, never comes up here.

(B) Remember, you’re asked for something that “the realists argued.” They would never claim that the legal system is “clear” in either theory or practice, and certainly don’t mention judges’ “unawareness” as part of the problem.

(C) seems to distort lines 22-26. To the realists, the reliance of a common-law system on precedent is the source not of “strength,” but of “an even more damaging kind of indeterminacy.” Moreover (C)’s distinction between precedent and abstract principles is bogus. Insofar as we can tell from the passage, a legal precedent, while based on a specific court case, would in fact become an “abstract” principle of law on which other judges should rely.

(D) The realists made no charge of “willful misinterpretation.” To them, the leeway that judges have to redefine precedents is built into the system, not the result of judges’ misconduct. Moreover, the author never reports on how the realists would “improve” the system (if indeed that was ever part of their scope; they were philosophers, after all, not necessarily legal reformers).

• When a question cites a specific phrase from the passage like “common-law system” here—or “eyewitness style” in Q.11—use it like a line reference, to help you find the answer. And don’t jump at the first such reference you see! Be thorough.

2. According to the passage, which one of the following best describes the relationship between a judicial holding and a judicial decision?

Explanation

This question clearly sends you to the first half of Para 3, where we learn that the holding is one of the two parts of the decision (the dicta are the other part). (E)’s verbs (“sets forth” and “justifies”) act neatly to paraphrase lines 28-30.

(A) is right in alleging that the decision is supposed to be binding on later judges (lines 24-26), but wrong in contrasting that with the holding. The holding is supposed to be the binding part (lines 30-31).

(B) and (C) are both flat-out incorrect. The holding both announces and explains the decision.

(D) Close but no cigar. The decision consists of the holding and the dicta.

• A true “detail question,” like this one, demands care. Don’t let time constraints force you to read sloppily and incompletely.

Hope it helps

gaurav2m wrote:
Can any 1 pls explain question 1, 2

COULD YOU POST ALL OE??? IT IS ALMOST ALWAYS HELPFUL
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Re: Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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26 Apr 2019, 08:14
1
1

Explanation

3. The information in the passage suggests that the realists would most likely have agreed with which one of the following statements about the reaction of judges to past interpretations of a precedential case, each of which states a different legal rule?

Explanation

As baffling as the question stem looks and reads, the answer is pretty straightforward. Indeed, (B) in a sense sums up the realists’ “main idea” about the effect of precedent on judges—it can lead to vast differences of opinion. The relevant portion of the passage is lines 46-54.

(A) The first half is o.k.—although (B)’s “might differ” is better than (A)’s more categorical “would most likely disagree”—but the “overturning” of decisions is never mentioned.

(C) contradicts the last sentence of the passage. Far from feeling bound by every rule (which sounds like a recipe for paralysis), the judge may pick and choose among the rules. That’s the “indeterminacy” that the realists are getting at.

(D) Hardly. That “lack of unanimity” leads to the judge’s ability to choose among the relevant rules, not to the absence of precedent.

• By all means, when a stem is as forbidding as this one, save it till later in the section. You’ll find that you’re more relaxed and can concentrate better on the question, when a lot of the other questions are out of the way.

4. It can be inferred from the passage that most legal scholars today would agree with the realists that

Explanation

Today’s legal scholars only enter the passage up front, and the very first sentence demonstrates the point of agreement between them and the realists: Indeterminacy, at least the indeterminacy stemming from linguistic vagueness, is built into the law.

(B) is a realist notion. Lines 6-8 specify today’s scholars belief that most cases rest on “clear...meanings” and lead to “definite outcomes.”

(C) comes out of para 3, where no mention of today’s scholars appears. We don’t know whether they hold the same view of the blurring of holding and dicta that the realists
did.

(D) If “the boundaries of applicability of terms” means how rules are applied, then (D) contradicts para 1: To today’s scholars, most cases end with “definite outcomes.” In any case, (D) draws a distinction that appears nowhere in para 1.

(E) Another realist notion that contradicts lines 6-8.

• We’ve said it before and we’ll say it again: The further you wander from the part of the passage where the answer has to be found, the more likely you are to run into trouble. Here, if you move away from lines 1-8, you’re sunk.

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

Explanation

This question gets at what the author means by the loose distinction between holding and dicta. The latter are supposed to be the non-essentials in a case, that which did not contribute to that case’s outcome. But if judges “are not bound by the original judge’s perception” (lines 40-41), and can “choose which rules of law formed the basis of the decision in a precedential case” (lines 45-46), then inferably they can, as (D) suggests, pull from the dicta in deciding how the rules are to be applied.

(A) sounds plausible, since the passage mentions the holding and dicta as “parts” of the decision. But note lines 37-38: The statement “even when the judge writing an opinion characterizes part of it as ‘the holding’” implies that making such a strict distinction is the exception rather than the norm. In this light, also see wrong choice (E).

(B) is one more wrong choice harping on the rightness or “appropriateness” of judges’ decisions. What judges disagree about, insofar as the realists are concerned, is what is and is not essential in a precedential case, not whether reasoning was or was not appropriate.

(C) The notion of a fixed consensus developing at any time is totally antithetical to the realists’ position.

(E) If this were true, then perhaps the blurring of holding and dicta would occur less often. The sense of the realists’ argument is, rather, that holding and dicta are easy to blur (“indeterminacy,” remember?).

• Keeping in mind the overall “spirit of the passage” can help you even on questions that don’t appear to be global in nature. Here, remembering the general point of view of the realists about judicial indeterminacy leads you towards (D), or at least allows you quickly to reject (A), (C), and (E).

6. Which one of the following best describes the overall organization of the passage?

Explanation

Para 1 does indeed describe two viewpoints (the current view, and that of the earlier realists) in brief, and then goes on to describe the latter at length. (A) Neither the current view nor that of the realists can fairly be called “traditional.”

(A) may be referring to the “traditional view” of holding and dicta, and the way that that fails to work out in practice. That seems a stretch; but even if you accept that reading of (A), it only describes para 3, not the passage structure overall.

(B) is easily rejectable in its assertion that two thought systems are compared “point by point.” From line 9 to the end, we are concerned with the realists’ argument only.

(C) If the concept that (C) is allegedly defining is judicial indeterminacy, then clearly the rest of the passage is devoted to exploring it, not “refuting” it. In any case (C) misses the idea of a point of view being described at length.

(E) makes up a contrast between theory and practice that (as mentioned in terms of (A) above) may marginally relate to para 3 but is inadequate as a summary of the overall structure.

• To avoid getting all bollixed up when the answer choices are written in abstract terms, take more time to pre-phrase some sort of an answer before studying the choices. Doing so will make you less vulnerable to the—shall we say?— indeterminacy of how such choices are written.

7. Which one of the following titles best reflects the content of the passage?

Explanation

In only a few words this choice manages to mention the topic (legal indeterminacy), the scope (the realists), and the purpose (view). Neat!

(A) Au contraire, the debate seems to have ended with the current agreement on the part of legal scholars that is the subject of para 1. The realists are clearly described as an earlier group, though we know not how much earlier.

(B) zeroes in way too much on para 3—holding and dicta appear only at line 28—though “a distinction without a difference” is a glib way to summarize the rest of the paragraph.

(C) fails to notice that the scope of the passage broadens from line 9 onward to encompass other types of legal indeterminacy than the merely linguistic.

(E), like (B), focuses only on details of para 3. Both choices sidestep the topic and scope.

Hope it helps
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Re: Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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18 Sep 2019, 01:47
Hi everyone,
Took 15:10 minutes and got 6/7 correct. Took 5 minutes to read, write down paragraphs summaries and MP.

P1

It talks about the point of view of legal scholars and realists. The 2 POW are in contrast

P2

It talks about the realists POW. An example is made in support of this view

P3

It talks specifically about an area in which realists think there is ambiguity. Main topics here are judges, decisions, holding, dicta etc...

MP

Talk about legal ambiguity through the POW of realists

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1. According to the passage, the realists argued that which one of the following is true of a common-law system?

Pre-thinking:
Detail question.
Refer to paragraph 2 and 3 to answer this question

(A) It gives rise to numerous situations in which the decisions of earlier judges are found to be in error by later judges.
"probably" is used to describe this scenario. Hence inconsistent and incorrect

(B) It possesses a clear set of legal rules in theory, but in practice most judges are unaware of the strict meaning of those rules.
Never mentioned. Hence incorrect

(C) Its strength lies in the requirement that judges decide cases according to precedent rather than according to a set of abstract principles.
Never mentioned. Hence incorrect

(D) It would be improved if judges refrained from willfully misinterpreting the written opinions of prior judges.
Never mentioned. Hence incorrect

(E) It treats the difference between the holding and the dicta in a written opinion rather loosely in practice.
"The realists argued that in
(35) practice the common-law system treats the
“holding/dicta” distinction loosely. ". Very close paraphrase. Hence correct

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2. According to the passage, which one of the following best describes the relationship between a judicial holding and a judicial decision?

Pre-thinking:

Detail question.
The holding is a part of the judicial decision and content the decision and the reasons for it. Note that the judicial decision includes also the dicta.

(A) The holding is not commonly considered binding on subsequent judges, but the decision is.
Irrelevant. Hence incorrect

(B) The holding formally states the outcome of the case, while the decision explains it.
Incorrect

(C) The holding explains the decision but does not include it.
incorrect

(D) The holding consists of the decision and the dicta.
Incorrect.

(E) The holding sets forth and justifies a decision.
In line with pre-thinking. Hence correct

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3. The information in the passage suggests that the realists would most likely have agreed with which one of the following statements about the reaction of judges to past interpretations of a precedential case, each of which states a different legal rule?

Pre-thinking:
Inference question.

The passage states that a problem arises when judges on subsequent cases interpret the law and give other reasons for the outcome of the cases. Sometimes the outcome can also be reversed. The point is there is no consistency between the reasons for a decision.

(A) The judges would most likely disagree with one or more of the interpretations and overturn the earlier judges’ decisions.
Probably is the word used in the passage. Hence incorrect

(B) The judges might differ from each other concerning which of the interpretations would apply in a given case.
In line with pre-thinking. Hence correct

(C) The judges probably would consider themselves bound by all the legal rules stated in the interpretations.
Incorrect

(D) The judges would regard the lack of unanimity among interpretations as evidence that no precedents existed.
Lack of humanity never mentioned. Hence incorrect

(E) The judges would point out in their holdings the inherent contradictions arising from the earlier judges’ differing interpretations.
Incorrect

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4. It can be inferred from the passage that most legal scholars today would agree with the realists that

Pre-thinking:
Inference question:

Ambiguity can lead to different outcomes in the law system

(A) linguistic vagueness can cause indeterminacy regarding the outcome of a litigated case
In line with pre-thinking: hence correct

(B) in any litigated case, several different and possibly contradictory legal rules are relevant to the decision of the case
any is too extreme. Hence incorrect

(C) the distinction between holding and dicta in a written opinion is usually difficult to determine in practice
Legal scholars don't even talk about holding and dicta. Hence incorrect

(D) the boundaries of applicability of terms may sometimes be difficult to determine, but the core meanings of the terms are well established
Realists would not agree. Hence incorrect

(E) a common-law system gives judges tremendous leeway in interpreting precedents, and contradictory readings of precedential cases can usually be found
LS would not agree. Hence incorrect

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

Pre-thinking:
Inference question

Refer to P3 and especially to " and the dicta (everything in an
opinion not essential to the decision, for example,
basis of the outcome)."

and

"The realists argued that in
(35) practice the common-law system treats the
“holding/dicta” distinction loosely."

(A) The judge writing the opinion is usually careful to specify those parts of the opinion he or she considers part of the dicta.
Cannot be inferred. hence incorrect

(B) The appropriateness of the judge’s decision would be disputed by subsequent judges on the basis of legal rules expressed in the dicta.
Cannot be inferred. hence incorrect

(C) A consensus concerning what constitutes the dicta in a judge’s opinion comes to be fixed over time as subsequent similar cases are decided.
Cannot be inferred. hence incorrect

(D) Subsequent judges can consider parts of what the original judge saw as the dicta to be essential to the original opinion.
Look at both the portions of the passage mentioned in pre-thinking:
#1 states that what is in the dicta is non essential
#2 no real distinction between dicta and holding.

So we can infer that what was in the dicta in the previous case could be considered as essential in the next one. Hence correct

(E) The judge’s decision and the grounds for it are usually easily distinguishable from the dicta.
Cannot be inferred. hence incorrect

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6. Which one of the following best describes the overall organization of the passage?

Pre-thinking:

Main point Question
Refer to main point above

(A) A traditional point of view is explained and problems arising from it are described.
Not in line with pre-thinking. Hence incorrect

(B) Two conflicting systems of thought are compared point for point and then evaluated.
No evaluation.[b]Not in line with pre-thinking. Hence incorrect[/b]

(C) A legal concept is defined and arguments justifying that definition are refuted.
nothing is refused. Hence incorrect

(D) Two viewpoints on an issue are briefly described and one of those viewpoints is discussed at greater length.
In line with pre-thinking. Hence correct

(E) A theoretical description of how a system develops is contrasted with the actual practices characterizing the system.
[b]Not in line with pre-thinking. Hence incorrect[/b]

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7. Which one of the following titles best reflects the content of the passage?

Pre-thinking:

Main point question.
Refer to main point above

(A) Legal Indeterminacy: The Debate Continues
No debate. Hence incorrect

(B) Holding Versus Dicta: A Distinction Without a Difference
Partial scope. Hence incorrect

(C) Linguistic Vagueness: Is It Circumscribed in Legal Terminology?
Legal and not linguistic. Hence incorrect

(D) Legal Indeterminacy: The Realist’s View of Its Scope
Correct

(E) Legal Rules and the Precedential System: How Judges Interpret the Precedents
Partial scope. Hence incorrect

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Currently, legal scholars agree that in some cases legal rules do not  [#permalink]

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05 Feb 2020, 18:16
How can we infer from the passage that subsequent judges can consider parts of what the original judge saw as the “dicta” to be essential to the original opinion???

We can only infer from sentences in (38)-(42)…

They pointed out that even when the judge writing an opinion characterizes part of it as “the holding” ,judges writing subsequent opinions,
although unlikely to dispute the decision itself, are not bound by the original judge’s perception of what was essential to the decision

...that, as for “holding”, subsequent judge’s opinions are “not” bound by the original judge’s perception of what was essential to the decision???
Currently, legal scholars agree that in some cases legal rules do not   [#permalink] 05 Feb 2020, 18:16