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Leaf2001br

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Dissenting opinions
« on: September 05, 2005, 05:20:50 PM »
How important are dissenting opinions?  It seems the purpose of studying them may be just as an academic exercise.  Once you have read the arguments of the case, you should be aware of the issues raised by both sides.  From this you should already be able to understand the merits of each side.  Once the majority opinion has already established the ruling that becomes law, why is it important to hear one judge rehash the merits of the arguments all over again in their singular personal opinion? I understand dissenting opinion may have its specific place, but as a student attempting to get a handle on such broad areas of law it sometimes seems beyond the scope of what we are trying to do.  When case assignments pile up, I often succumb to the temptation of skipping the dissent and starting my brief or going to the next case.

Does anyone agree or am I missing the point somewhere?
"What is Legal?  What is Illegal?  What is 'Barely Legal'?"  - Ali G

squarre

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Re: Dissenting opinions
« Reply #1 on: September 05, 2005, 07:05:04 PM »
I think several purposes are served by the dissenting opinions included in casebooks.

1) Always remember that most cases you have in your book are appellate decisions so the cases are either close decisions or there is some disagreement over what the law is or how it should be applied.  In this case it shows how those considered experts can disagree over the same exact set of facts.

2) Sometimes it just helps to show how legal analysis is done to help students learn how to write an exam answer when you need to consider bother sides of a given issue.

3) Sometimes the dissent in a given jurisdiction is the rule or how the law is applied in other jurisdiction.

4) Other times the dissenting opinion has now become the majority opinion and might be the way the law is now applied in the jurisdiction from which you are reading. The editors may just want to show the historical development of the given law.

5) Occassionaly the professor may tell you that the analysis of the majority opinion is wrong and the dissent is correct - either based on their interpretation of the law, the courts later interpretation, or based on the way higher courts have interpreted the meaning. 

Of course sometimes there probably is no reason for the dissenting opinion but often times one of the reasons above does apply.

Coregram

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Re: Dissenting opinions
« Reply #2 on: September 05, 2005, 08:09:21 PM »
I agree with squarre and would add a couple other points.

Majority decisions written by the majority to give the reasoning and support for their decision.  As such, the facts, rules, and reasoning included in the opinion are what the they felt necessary to justify the decision.   And it is that reasoning, more than the actual decision, that counts.  That's why the power to assign the writing of a decision is so important (one of the few real powers of the Chief Justice.)

The arguments the minority supported are often noted and the reasons for dismissing it given, but the full weight of the minority arguement isn't there.  Also, the dissent often includes facts the majority thought were irrelevant to its decision.   So I don't think it's correct to say you get all the issues, facts, and arguments for both sides in the majority opinion.

Also, an initial majority on a decision can turn into a minority, or be increased, based on drafts of the written opinion.  So what you are reading as a dissent may in fact started out as a majority opinion. 

Concurrences also can be important as some justices may have agreed with the ruling but disagreed with the majority's reasoning.

As a side bar, a good read on the Supreme Court, and the interactions of the judges as an opinion develops, is "The Brethern" by Bob Woodward and Scott Armstrong.  You might try that on a break or summer vacation.

Keep in mind, given the editors don't usually include the dissent/concurrences (or highly edit them,)they must feel there is a good reason to include any dissents/concurrences they do include, and I doubt the reason is to get the book up to 1,400 pages.  LOL

I wouldn't spend most of my time on them majority opinion, but definitely spend a little time on dissents and concurrences.

Leaf2001br

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Re: Dissenting opinions
« Reply #3 on: September 05, 2005, 10:26:43 PM »
I agree and understand what you both have to say.  Again, I do believe the dissenting opinion serves a relevant purpose.  If I were researching a specific problem for example, all opinions on the application of the law in that area would be important.  I guess I just get a little frustrated when confronted with trying to read and understand so many cases at once (like before tomorrow morning!) in the context that is law school.  No matter how much you study assigned cases, you could have always spent more time on them.  So I often worry about making the best practical use of my time in learning the important concepts.  Points well taken, though.
"What is Legal?  What is Illegal?  What is 'Barely Legal'?"  - Ali G