Post by Stephen Horowitz, Professor of Legal English
One of the challenges for many foreign-trained LLM students studying at a US law school, especially if they come from a civil law legal culture rather than a common law legal culture, is getting their brains to buy into the notion that the words and language and arguments that they read in a court opinion have weight. That statutes and statutory language is not the final say in a legal argument, but actually just a first step followed by a search for and review of case law that interprets various parts of a statute.
A subsequent and related challenge for many foreign-trained LLM students (as well as for US-trained JD students) is then training their brains to also understand that, even though what a judge writes in a court opinion may constitute law (at the time and in the jurisdiction of that particular case), it is not infallible and may have major flaws in its arguments. And this is even more so in law school in the US where the goal of study is often not just about determining what the law is, but thinking about what it could or should be. And training one’s brain to analyze arguments in order to be able to construct effective arguments in the future.
In that vein, I recently came across an article about the role of dissenting opinions that may be helpful for foreign-trained LLM students trying to wrap their brain around the US common law legal system. (Or legal English professors trying to help them get there.) Because from the perspective of one trained in a civil law legal system, a dissenting opinion may seem rather extraneous.
The article, “Teaching Dissents” (Minnesota Law Review, July 7, 2023) by Prof. Sherri Lee Keene of Georgetown Law, is intended to help law students better understand the significance of dissenting opinions.
The abstract of Prof. Keene’s article notes that, “Court opinions are often written to sound authoritative and sure, making legal decisions seem purely logical and channeling a tone of inevitability…… In contrast to the voice of the majority, which often seeks to draw attention away from conflicts, dissents can show where choices were made in the decision-making process, and where others could have been made.”
Prof. Keene highlights the notion that teaching and studying dissenting opinions is a great way for students to learn to be critical readers and “identify spaces where they can challenge existing precedent and advocate for positive change.”
And from a legal English perspective, I appreciate that Prof. Keene has provided those of us who work with foreign-trained LLM students a very useful tool for helping our students to more deeply understand and get comfortable with the concept the US common law legal system and its culture.
Below is the full abstract and a link to the article:
“Judges’ perspectives and attitudes—and even their biases and assumptions—naturally find their way into legal analysis and decision-making. Yet this reality is something that the language of opinions tends to deny. Court opinions are often written to sound authoritative and sure, making legal decisions seem purely logical and channeling a tone of inevitability. The way that opinions are written tends to obscure the human aspects of legal decision-making and mask subjectivity. Indeed, as judges select and interpret facts and draw inferences, a judge’s written analysis often neglects to even acknowledge that this is occurring. In doing so, judges can hide the turning points in a case where they favor one viewpoint over another based on their own experiences and ideas about how the world works.
The very presence of dissents challenges the myth of legal decision-making as objective and straight-forward; in speaking back to the court’s opinion, a dissent lays bare the complexities and reveals points of uncertainty in a case. In contrast to the voice of the majority, which often seeks to draw attention away from conflicts, dissents can show where choices were made in the decision-making process, and where others could have been made. In exposing the ambiguity in a case, dissents make room for alternative realities and experiences that were not raised by the majority and show where their consideration could have made a difference.
This Article considers the role that dissenting opinions can play in preparing students to be critical readers of judicial texts who look beyond a court’s language to understand the law and situate court opinions in a broader social and cultural context. This Article provides practical suggestions about how law teaching can incorporate dissents—and other writings—to better prepare law students to engage deeply with the law and identify spaces where they can challenge existing precedent and advocate for positive change.”