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# What is “law”? By what processes do judges arrive at opinions, those

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What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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26 Nov 2019, 11:08
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New Project RC Butler 2019 - Practice 2 RC Passages Everyday
Passage # 476, Date: 26-Nov-2019
This post is a part of New Project RC Butler 2019. Click here for Details

What is “law”? By what processes do judges arrive
at opinions, those documents that justify their belief
that the “law” dictates a conclusion one way or the
other? These are among the oldest questions in
been dominated by representatives of two schools of
thought: proponents of natural law, who see law as
intertwined with a moral order independent of society’s
rules and mores, and legal positivists, who see law
(10) solely as embodying the commands of a society’s
ruling authority.

Since the early 1970s, these familiar questions have
academy. This novelty is in part a consequence of the
(15) increasing influence there of academic disciplines and
intellectual traditions previously unconnected with the
study of law. Perhaps the most influential have been the
answers given by the Law and Economics school.
According to these legal economists, law consists and
(20) ought to consist of those rules that maximize a society’s
material wealth and that abet the efficient operation of
markets designed to generate wealth. More
controversial have been the various answers provided
by members of the Critical Legal Studies movement,
(25) according to whom law is one among several cultural
mechanisms by which holders of power seek to
legitimate their domination. Drawing on related
arguments developed in anthropology, sociology, and
history, the critical legal scholars contend that law is an
(30) expression of power, but not, as held by the positivists,
the power of the legitimate sovereign government.
Rather, it is an expression of the power of elites who
may have no legitimate authority, but who are intent on
preserving the privileges of their race, class, or gender.

(35) In the mid-1970s, James Boyd White began to
articulate yet another interdisciplinary response to the
traditional questions, and in so doing spawned what is
now known as the Law and Literature movement.
White has insisted that law, particularly as it is
(40) interpreted in judicial opinions, should be understood
as an essentially literary activity. Judicial opinions
should be read and evaluated not primarily as political
acts or as attempts to maximize society’s wealth
through efficient rules, but rather as artistic
(45) performances. And like all such performances, White
argues, each judicial opinion attempts in its own way to
promote a particular political or ethical value.

In the recent Justice as Translation, White argues
that opinion-writing should be regarded as an act of
(50) “translation,” and judges as “translators.” As such,
judges find themselves mediating between the
authoritative legal text and the pressing legal problem
that demands resolution. A judge must essentially
“re-constitute” that text by fashioning a new one, which
(55) is faithful to the old text but also responsive to and
informed by the conditions, constraints, and aspirations
of the world in which the new legal problem has arisen.

Spoiler: :: OA
A

1. Which one of the following best states the main idea of the passage?

(A) Within the last few decades, a number of novel approaches to jurisprudence have defined the nature of the law in diverse ways.
(B) Within the last few decades, changes in society and in the number and type of cases brought to court have necessitated new methods of interpreting the law.
(C) Of the many interdisciplinary approaches to jurisprudence that have surfaced in the last two decades, the Law and Literature movement is the most intellectually coherent.
(D) The Law and Literature movement, first articulated by James Boyd White in the mid-1970s, represents a synthesis of the many theories of jurisprudence inspired by the social sciences.
(E) Such traditional legal scholars as legal positivists and natural lawyers are increasingly on the defensive against attacks from younger, more progressive theorists.

Spoiler: :: OA
B

2. According to the passage, judicial opinions have been described as each of the following EXCEPT:

(A) political statements
(B) arcane statements
(C) economic statements
(D) artistic performances
(E) acts of translation

Spoiler: :: OA
B

3. Which one of the following statements is most compatible with the principles of the Critical Legal Studies movement as that movement is described in the passage?

(A) Laws governing the succession of power at the death of a head of state represent a synthesis of legal precedents, specific situations, and the values of lawmakers.
(B) Laws allowing income tax deductions for charitable contributions, though ostensibly passed by lawmakers, were devised by and are perpetuated by the rich.
(C) Laws governing the tariffs placed on imported goods must favor the continuation of mutually beneficial trade arrangements, even at the expense of long-standing legal precedent.
(D) Laws governing the treatment of the disadvantaged and powerless members of a given society are an accurate indication of that society’s moral state.
(E) Laws controlling the electoral processes of a representative democracy have been devised by lawmakers to ensure the continuation of that governmental system.

Spoiler: :: OA
D

4. Which one of the following does the passage mention as a similarity between the Critical Legal Studies movement and the Law and Literature movement?

(A) Both offer explanations of how elites maintain their hold on power.
(B) Both are logical extensions of either natural law or legal positivism.
(C) Both see economic and political primacy as the basis of all legitimate power.
(D) Both rely on disciplines not traditionally connected with the study of law.
(E) Both see the practice of opinion-writing as a mediating activity.

Spoiler: :: OA
E

5. Which one of the following can be inferred from the passage about the academic study of jurisprudence before the 1970s?

(A) It was concerned primarily with codifying and maintaining the privileges of elites.
(B) It rejected theories that interpreted law as an expression of a group’s power.
(C) It seldom focused on how and by what authority judges arrived at opinions.
(D) It was concerned primarily with the study of law as an economic and moral agent.
(E) It was not concerned with such disciplines as anthropology and sociology.

Spoiler: :: OA
D

6. Proponents of the Law and Literature movement would most likely agree with which one of the following statements concerning the relationship between the law and judges’ written opinions?

(A) The once-stable relationship between law and opinion-writing has been undermined by new and radical theoretical developments.
(B) Only the most politically conservative of judges continue to base their opinions on natural law or on legal positivism.
(C) The occurrence of different legal situations requires a judge to adopt diverse theoretical approaches to opinion-writing.
(D) Different judges will not necessarily write the same sorts of opinions when confronted with the same legal situation.
(E) Judges who subscribe to divergent theories of jurisprudence will necessarily render divergent opinions.

Spoiler: :: OA
C

7. Which one of the following phrases best describes the meaning of “re-constitute” as that word is used in line 54 of the passage?

(A) categorize and rephrase
(B) investigate and summarize
(C) interpret and refashion
(D) paraphrase and announce
(E) negotiate and synthesize

Spoiler: :: OA
A

8. The primary purpose of the passage is to

(A) identify differing approaches
(B) discount a novel trend
(D) correct misinterpretations
(E) reconcile seeming inconsistencies

• Source: LSAT Official PrepTest 21 (December 1996)
• Difficulty Level: 700

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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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28 Nov 2019, 23:38
Got questions 3, 4, 7 and 8 wrong.

7 - was a silly mistake
8 - not able to gauge this. i selected B thinking that the progression of the passage is such that it states and keep refuting the different thought processes and ideologies in the interpretation of the law.
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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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29 Nov 2019, 01:00
1
somesh86 wrote:
Got questions 3, 4, 7 and 8 wrong.

7 - was a silly mistake
8 - not able to gauge this. i selected B thinking that the progression of the passage is such that it states and keep refuting the different thought processes and ideologies in the interpretation of the law.

Explanation

8. The primary purpose of the passage is to

Explanation

The phrase “primary purpose” means that this question, like #1, is a Global question. Once again, then, you’ve got to consider the entire passage, not just a portion of it. If you recognized that the author restricts himself to describing various notions about the nature of law—he doesn’t advocate any of them—(A) should have jumped out at you.

(B), (C), (D) are all inconsistent with the author’s descriptive purpose. “Discount” (B), “advocate” (C), and “correct” (D) all incorrectly suggest that the author offers his own point of view in the passage.

(E) What inconsistencies does the author reconcile? He simply describes different views.

PS: When you run across a “primary purpose” question, always ask yourself whether the author’s purpose is descriptive or argumentative. Then do a “verb scan” to eliminate those choices that are inconsistent with the author’s purpose. Usually, you’ll be able to get rid of at least two or three wrong choices this way, which will make your job of finding the correct answer that much easier.

Hope it helps
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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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30 Nov 2019, 00:54
1
“re-constitute” that text by fashioning a new one, which is faithful to the old text but also responsive to and informed by the conditions, constraints, and aspirations of the world in which the new legal problem has arisen.

Que 7. Which one of the following phrases best describes the meaning of “re-constitute” as that word is used in line 54 of the passage?

(A) categorize and rephrase
(B) investigate and summarize
(C) interpret and refashion
(D) paraphrase and announce
(E) negotiate and synthesize
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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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04 Dec 2019, 08:20
I got 5 of 8 correct. I'd love to see the official explanation of #3. I went with (E).
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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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04 Dec 2019, 08:53
MikeScarn wrote:
I got 5 of 8 correct. I'd love to see the official explanation of #3. I went with (E).

Explanation

3. Which one of the following statements is most compatible with the principles of the Critical Legal Studies movement as that movement is described in the passage?

Difficulty Level: 700

Explanation (This is not an official explanation by LSAC)

Lines 32-34 tell us that Critical Legal theorists believe that laws reflect the interests of elites “who may have no legitimate authority.” We’re further told that these elites use laws to protect “the privileges of their race, class, or gender.” The statement in choice (B) reflects this mindset. In contrast to lawmakers, the rich aren’t a legitimate source of authority. Yet they’ve “devised and perpetuated” income tax laws—laws that permit them to keep their wealth out of the government’s hands.

(A) sounds like something a member of the Law and Literature school would say. These folks, lines 45-57 point out, are the ones that speak of law as an outgrowth of a combination of legal precedent, current events, and judicial values.

(C) sounds like something a member of the Law and Economics school would say. These folks, lines 19-22 reveal, talk about the connection between economic processes and law.

(D) sounds like something a member of the Naturalist school might say. These folks, lines 7-9 tell us, emphasize the connection between morality and law.

(E) sounds like something a member of the Positivist school would say. These folks, lines 9- 11 indicate, speak of law being made by society’s legitimate ruling authorities.

• Although this question doesn’t look anything like a Logical Reasoning Parallel Reasoning question, you can attack it in much the same way you’d attack an LR Parallel Reasoning question. Find the choice that expresses a relationship similar to the one the question stem hints at.

Hope it helps
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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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05 Dec 2019, 00:52
need explanations for 3 4 5 & 6
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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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05 Dec 2019, 21:55
20 Minutes, all correct.
Fell in love with this passage, (Legal Background)
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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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06 Dec 2019, 01:02
Bikramjeet wrote:
need explanations for 3 4 5 & 6

Explanation

For explanation of question number 3 visit below link

https://gmatclub.com/forum/what-is-law- ... l#p2417717

4. Which one of the following does the passage mention as a similarity between the Critical Legal Studies movement and the Law and Literature movement?

Difficulty Level: 700

Explanation

Lines 14-17 suggest that the modern, post-1970 schools inquiring into the nature of law share one trait in common: they’ve all been influenced by “academic disciplines and intellectual traditions previously unconnected with the study of law.” Lines 27-29 relate the particular academic disciplines and intellectual traditions that have influenced the Critical Legal Studies school, while line 36 points out that the Law and Literature school is also “interdisciplinary.”

(A) While the Critical Legal Studies school is concerned with how elites maintain their power through the law (see lines 29-34), the Law and Literature school is concerned only with how new law is developed.

(B) It might be argued that the Critical Legal Studies school is an extension of legal positivism since both dwell on the connection between law and authority; however, the Law and Literature school is not a descendent of either natural law or legal positivism, which focus on moral and political issues, respectively. The Law and Literature school dwells primarily on the connection between law and literary activity.

(C) Neither the Critical Legal Studies school nor the Law and Literature school is concerned with the connection between law and economics. Rather, it’s the Law and Economics school that deals with this issue. Moreover, the Critical Legal Studies school argues that the power of many political elites is illegitimate, while the Law and Literature school doesn’t explicitly comment on the nature of legitimate political power.

(E) Only the Law and Literature school looks upon judicial opinion-writing as a “mediating activity” (see lines 48-53).

• The phrase “which one of the following does the passage mention” is a tip-off that this is an Explicit Text question. Your job in this type of question is to use your mental roadmap of the passage to find the information relevant to answering the question. Once you’ve accomplished this task, you’ve just got to match this information to the correct answer choice.

5. Which one of the following can be inferred from the passage about the academic study of jurisprudence before the 1970s?

Difficulty Level: 700

Explanation

Collectively, lines 12-17 tell us that “academic disciplines and intellectual traditions previously unconnected with the study of law” have had an impact on the study of law since the 1970s. Put differently, these academic disciplines and intellectual traditions, including anthropology and sociology, didn’t affect the study of law before the 1970s.

(A) The study of law before and after 1970 has been concerned with the nature of law itself, not with “codifying and maintaining the privileges of elites.”

(B) The pre-1970s Positivist school, lines 9-11 indicate, drew a direct connection between law and the political power of groups.

(C) The fact that the post-1970 Law and Literature school focuses primarily on judicial opinions doesn’t mean that this issue was necessarily ignored in the pre-1970 study of law.

(D) Neither the Naturalist nor Positivist schools focused on economic issues. Rather, the post-1970 Law and Economics school concentrates on this issue.

6. Proponents of the Law and Literature movement would most likely agree with which one of the following statements concerning the relationship between the law and judges’ written opinions?

Difficulty Level: 700

Explanation

The Law and Literature school’s view of how judges render opinions is dealt with in Para 4; so, you’ll need to go there for the information necessary to answer this question. Individual judges, according to this school, reinterpret established legal texts in order to solve current legal problems. Since members of this school believe that judicial opinions are based on individual decisions, it follows logically that they would also believe that different judges might come to different decisions when faced with the same legal situation.

(A), (C), (E) Judges, according to the Law and Literature school’s members, make decisions by adapting established legal texts to current legal problems. There’s nothing in the passage to indicate that Law and Literature school members think that “theories” of law have anything to do with judicial decision making.

(B) is inconsistent with the Law and Literature school’s emphasis on judicial adaptability. Since members of this school feel that all judges reinterpret established legal texts, they wouldn’t endorse the view that some judicial opinions are based purely on natural law or legal positivist doctrine.

Hope it helps
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What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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11 Dec 2019, 02:10
3
Hi everyone,
Got 7/8 correct in 16 minutes.

----------------------------------------------------------------------------

P1

Paragraph one presents the topic: what is law?
We are given that 2 schools of thought have tried to answer the questions related to such topic: proponents of natural law and legal positivists. The main difference is that while proponents of natural law have a moral angle unrelated to society, legal positivists are strictly related with society.

Brief summary: Proponents of natural law versus legal positivists

P2

Paragraph 2 states that in the last few decades answers to the questions presented in P1 were given by areas that previously were not connected to law.
We have the legal economists, according to whom law is related to wealth and we have the CLS, according to which law is used by people who hold power (can be also illegitimate power) to keep such power.

Brief summary: Legal economists and CLS

P3

Paragraph 3 gives us another relevant point of view, the one of White.
White created the literature and law movement, according to which a judicial opinion is to be interpreted as an artistic piece that transmits a political or ethical value. Note that a point of similarity between white and the movements in P2 is the fact that such movement draws from different disciplines.

Brief summary: White and his literature-based movement

P4

According to White the judge is a translator who translates the legal texts. It is important to stress that such judge/translator has to take into consideration all the current constraints to give an efficient translation.

Brief summary: White sees judges as translators

Main Point

The main point is to simply summarize all the relevant point of vies related to law in the last decades

----------------------------------------------------------------------------

1. Which one of the following best states the main idea of the passage?

Pre-thinking

Main point question

Refer to main point and summaries above

(A) Within the last few decades, a number of novel approaches to jurisprudence have defined the nature of the law in diverse ways.
In line with pre-thinking

(B) Within the last few decades, changes in society and in the number and type of cases brought to court have necessitated new methods of interpreting the law.
Inconsistent because there is no mention in the passage of such information

(C) Of the many interdisciplinary approaches to jurisprudence that have surfaced in the last two decades, the Law and Literature movement is the most intellectually coherent.
Extreme because of most. Out

(D) The Law and Literature movement, first articulated by James Boyd White in the mid-1970s, represents a synthesis of the many theories of jurisprudence inspired by the social sciences.
Wether correct or not this option is to narrow to be a main point

(E) Such traditional legal scholars as legal positivists and natural lawyers are increasingly on the defensive against attacks from younger, more progressive theorists.
[b]Completely out of scope[/b]

----------------------------------------------------------------------------

2. According to the passage, judicial opinions have been described as each of the following EXCEPT:

Pre-thinking

Detail question

Let's evaluate each single option

(A) political statements
From P3: "each judicial opinion attempts in its own way to
promote a particular political or ethical value.
"

(B) arcane statements
Not mentioned

(C) economic statements
From P2: " Perhaps the most influential have been the
answers given by the Law and Economics school.
"

(D) artistic performances
From P3: "but rather as artistic
(45) performances.
"

(E) acts of translation
From P4: "n the recent Justice as Translation, White argues
that opinion-writing should be regarded as an act of
(50) “translation,” and judges as “translators.”
"

----------------------------------------------------------------------------

3. Which one of the following statements is most compatible with the principles of the Critical Legal Studies movement as that movement is described in the passage?

Pre-thinking

Analogous statement question

Let's first identify the resining behind CLS.

From P2: "Critical Legal Studies movement,
(25) according to whom law is one among several cultural
mechanisms by which holders of power seek to
legitimate their domination.
"

AND

"it is an expression of the power of elites who
may have no legitimate authority, but who are intent on
preserving the privileges of their race, class, or gender.
"

(A) Laws governing the succession of power at the death of a head of state represent a synthesis of legal precedents, specific situations, and the values of lawmakers.
Per CLS law serves all the people who wants to keep power and their privileges.
" but not, as held by the positivists,
the power of the legitimate sovereign government."

(B) Laws allowing income tax deductions for charitable contributions, though ostensibly passed by lawmakers, were devised by and are perpetuated by the rich.
This option shows a scenario in which rich(=people with power) people use law at their advantage. Correct

(C) Laws governing the tariffs placed on imported goods must favor the continuation of mutually beneficial trade arrangements, even at the expense of long-standing legal precedent.
Not in line with pre-thinking

(D) Laws governing the treatment of the disadvantaged and powerless members of a given society are an accurate indication of that society’s moral state.
Out of scope

(E) Laws controlling the electoral processes of a representative democracy have been devised by lawmakers to ensure the continuation of that governmental system.
Same reasoning for choice A

----------------------------------------------------------------------------

4. Which one of the following does the passage mention as a similarity between the Critical Legal Studies movement and the Law and Literature movement?

Pre-thinking

Detail question

From P3: "In the mid-1970s, James Boyd White began to
articulate yet another interdisciplinary response to the
"

We are given in P2 that such disciplines were not connected with the traditional disciplines associated with law

(A) Both offer explanations of how elites maintain their hold on power.
Not in line with pre-thinking.

(B) Both are logical extensions of either natural law or legal positivism.
Not in line with pre-thinking.

(C) Both see economic and political primacy as the basis of all legitimate power.
Not in line with pre-thinking.

(D) Both rely on disciplines not traditionally connected with the study of law.
in line with pre-thinking.

(E) Both see the practice of opinion-writing as a mediating activity.
Not in line with pre-thinking.

----------------------------------------------------------------------------

5. Which one of the following can be inferred from the passage about the academic study of jurisprudence before the 1970s?

Pre-thinking

Inference question

From P2: "Since the early 1970s, these familiar questions have
"

From P2: "This novelty is in part a consequence of the
(15) increasing influence there of academic disciplines and
intellectual traditions previously unconnected with the
study of law.
"

Inference#2: Previously such questions were answered by people in field connected with law

(A) It was concerned primarily with codifying and maintaining the privileges of elites.
Out of scope

(B) It rejected theories that interpreted law as an expression of a group’s power.
Cannot be inferred

(C) It seldom focused on how and by what authority judges arrived at opinions.
Cannot be inferred

(D) It was concerned primarily with the study of law as an economic and moral agent.
Inconsistent because of [b]Economic
[/b]

(E) It was not concerned with such disciplines as anthropology and sociology.
This option matches our rethought inference#2

----------------------------------------------------------------------------

6. Proponents of the Law and Literature movement would most likely agree with which one of the following statements concerning the relationship between the law and judges’ written opinions?

Pre-thinking

Inference question

We are given that according to the L&L movement judges are seen as translators

(A) The once-stable relationship between law and opinion-writing has been undermined by new and radical theoretical developments.
Out of scope

(B) Only the most politically conservative of judges continue to base their opinions on natural law or on legal positivism.
Extreme

(C) The occurrence of different legal situations requires a judge to adopt diverse theoretical approaches to opinion-writing.
Here the problem is the usage of the term "theoretical approach". Clearly the judge must focus also on the current constraints related to society etc.. but the theoretical approach does not necessarily change. Out

(D) Different judges will not necessarily write the same sorts of opinions when confronted with the same legal situation.
From P3: "each judicial opinion attempts in its own way to
promote a particular political or ethical value.
"

(E) Judges who subscribe to divergent theories of jurisprudence will necessarily render divergent opinions.
Not given

----------------------------------------------------------------------------

7. Which one of the following phrases best describes the meaning of “re-constitute” as that word is used in line 54 of the passage?

Pre-thinking

Meaning question

"“re-constitute” that text by fashioning a new one, "

(A) categorize and rephrase
Not categorization is done

(B) investigate and summarize
No investigation is done

(C) interpret and refashion
This option matches directly the passage

(D) paraphrase and announce
No announcement is done

(E) negotiate and synthesize
No negotiation and no synthesis is required

----------------------------------------------------------------------------

8. The primary purpose of the passage is to

Pre-thinking

Main point question

Refer to main point and summaries above

(A) identify differing approaches
In line with pre.thinking

(B) discount a novel trend
Not in line with pre.thinking

Not in line with pre.thinking

(D) correct misinterpretations
Not in line with pre.thinking

(E) reconcile seeming inconsistencies
Not in line with pre.thinking

----------------------------------------------------------------------------

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Re: What is “law”? By what processes do judges arrive at opinions, those  [#permalink]

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16 Dec 2019, 05:59

Question #5 has been discussed in below posts twice.

https://gmatclub.com/forum/what-is-law- ... l#p2418739

https://gmatclub.com/forum/what-is-law- ... l#p2421890

Thanks
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Re: What is “law”? By what processes do judges arrive at opinions, those   [#permalink] 16 Dec 2019, 05:59
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