PrepTest 111

[lcid:3541] Prep Test 111 LSAT — Reading Comp — S2 Reading comp

Passage

Questions 21-26  .        Ronald Dworkin argues that judges are in danger of  . uncritically embracing an erroneous theory known Remaining source text redacted.
Passage walkthrough
Passage Summary

Topic: Legal Studies


Paragraph 1

  • Paragraph note
    • Dworkin's view (judges embrace legal positivism because the only alternative, natural law, is worse)
  • Views, minor Meta-Structures, and the author's attitude
    • Definition of "natural law": Judges should rule according to their moral convictions (second sentence)
    • Dworkin's view:
      • Judges are in danger of embracing the erroneous legal positivism because they mistakenly think the only alternative philosophy is natural law, which is an impermissible form of judicial activism (first and third sentences)

Paragraph 2

  • Paragraph note
    • Dworkin on legal positivism (legal questions resolved by consensus, like definitions)
  • Views, minor Meta-Structures, and the author's attitude
    • Definition of "legal positivism": law and morality are completely separate; the meaning of the law is determined by social convention (first and second sentence)
    • Comparison, according to Dworkin:
      • Resolving legal questions under legal positivism is like identifying the definition of a word; the question/definition is based on whether there's a consensus on the topic (second and fourth sentence)
    • Dworkin's view
      • Under legal positivism, judges rule in trials based on what the consensus is, not on what's moral; if there's no consensus, there's no legal fact (third and fifth sentences)
      • The judge's job is to figure out if there is a consensus (last sentence)

Paragraph 3

  • Paragraph note
    • Dworkin's criticism of legal positivism (judges have to rule w/o consensus) and middle-ground proposal (use general principles/logic laws embody)
  • Views, minor Meta-Structures, and the author's attitude
    • Dworkin's views:
      • Legal positivism doesn't square with the actual practice of judges, who have to make rulings when there is no consensus (first sentence)
      • Instead, judges should look to the laws' "internal logic" and general principles; these principles might involve moral judgments, but judges are still bound by the internal logic of the law (fourth through last sentences)
    • Author's attitude: "correctly sees as the error" (second sentence)

Paragraph 4

  • Paragraph note
    • Author's view (Dworkin's approach allows us to improve our interpretation of the law)
  • Views, minor Meta-Structures, and the author's attitude
    • Author's views:
      • The legal positivists are wrong because the meaning of the law is more than just what people think it means (first sentence)
      • Dworkin's approach allows us to improve how we interpret the law (last sentence)
    • Author's attitude: "mistake" (first sentence), "possibility of improving" (last sentence)

Main Point: Dworkin's approach to legal interpretation — that the law should be interpreted according to its internal logic and general principles — is a promising middle ground between natural law and legal positivism.

Meta-Structure?

Resolving a Debate: This passage utilizes a Resolving a Debate Meta-structure. In such structures, the author will do just that: lay out two sides of a debate and then insert their own opinion to resolve it.

Through the work of one Ronald Dworkin, this passage introduces us to a debate between two competing philosophies of how judges should interpret the law. One view, legal positivism, holds that laws should be evaluated based on how they compare to social conventions. The other side believes that judges should rely on their sense of morality. Then we get Dworkin's theory, a sort of middle ground. He says that laws operate on internal logic and general principles, and judges should rely on these principles to interpret the law.

In a passage with a Resolving a Debate Meta-Structure, the main point will be the author's opinion on or mediation/reconciliation of the debate. In this case, the author explicitly endorses Dworkin's middle ground in the final paragraph. So, our anticipated main point is, "Dworkin's approach to legal interpretation — that the law should be interpreted according to its internal logic and general principles — is a promising middle ground between natural law and legal positivism."

Last Thoughts?

Once we have identified that the focus of the passage is a debate, it's of critical importance that we determine if the author agrees with either side. For the majority of this passage, the author is relatively "silent." There's not much to indicate which view (if either) the author holds ... until the final paragraph. In the last paragraph, the author makes an explicit endorsement. There, the author says that Dworkin's theory will open the door to better interpretations of the law. From this, we know that the author agrees with Dworkin and that is invaluable to our understanding of the passage's entire argument structure.

Question prompt

The passage suggests that Remaining source text redacted.
Why the credited answer is right

Credited answer: E

The notes below walk through why it fits the stem and how to eliminate the rest.

Question Type

Legal

Strategy Overview

Review your notes to recall Dworkin's views, then find an answer that must be true according to the passage

Answer Anticipation

This question stem asks us to infer a belief Dworkin would agree with. Often, one's views are described at length throughout the passage, so reviewing the passage or anticipating what the correct answer will say is not a wise investment of our limited time. Instead, we can remind ourselves of what we noted about their views and go on to the answer choices. We'll eliminate each one we know is wrong (for instance, if we know it contradicts their views) and table any choice that includes a detail we don't remember reading. If we see a detail we recall, even vaguely, we can review the passage to see if we can find the supporting text.So, for this question, we can use our main point and notes to remind ourselves about Dworkin's views. He criticizes legal positivism because "judges have to rule without consensus." He also proposes a middle-ground approach that relies on the "general principles/logic laws embody." If we need more specific information than that, we can review the passage as needed.

Answer choices

  1. A
    Judges and lawyers too Remaining source text redacted.
    Why choice A is not credited

    (A) Is this consistent with Dworkin's views, as they are reflected in our main point and notes?

    No, not really. Neither our main point nor notes suggest that Dworkin thinks judges "too often" act as though there is a fact of the matter in a legal case. Since our resources don't suggest that (A) is supported, we can table it and move on to the next answer choice.

    If we had to review the passage to confirm that (A) is incorrect, we'd see that Dworkin criticizes legal positivists by arguing that judges have to "act as if there is a fact of the matter even in cases where there is no consensus" (P3, S1). These legal positivists think that "[w]here there is no consensus, there is no legal fact of the matter" (P2, S5). So, Dworkin would argue that judges have to act as though there is a fact of the matter in legal cases far more often than the legal positivists think. This means Dworkin would probably disagree with this answer choice.

  2. B
    Judges should not use Remaining source text redacted.
    Why choice B is not credited

    (B) Is this consistent with Dworkin's views, as they are reflected in our main point and notes?

    Not really. Neither our main point nor notes suggest Dworkin grants special importance to the "intentions" of laws' original authors. Instead, Dworkin appeals to the laws' "general principles/logic." Our resources don't suggest that (B) is supported, so we can table it and move on to the next answer choice.

    If we had to review the passage to confirm that (B) is incorrect, we'd see that Dworkin thinks that the interpretation of the law shouldn't just be based on the original authors' intention (P4, S1). In fact, Dworkin argues that a judge's moral intuition when interpreting any law, provided that they're guided by the law's internal logic (P3, S6-S7). So, Dworkin seems to place more emphasis on moral intuition than the original authors' intention; he would almost certainly disagree with (B).

  3. C
    Legal positivism is a Remaining source text redacted.
    Why choice C is not credited

    (C) Is this consistent with Dworkin's views, as they are reflected in our main point and notes?

    Not really. Neither our main point nor notes suggest Dworkin explains why legal positivism is popular. Because our resources don't suggest that Dworkin would agree with (C), we can table it and move on to the next answer choice.

    If we had to review the passage to confirm that (C) is incorrect, we'd see that Dworkin thinks that judges might subscribe to legal positivism because they see it as the only alternative to another bad philosophy (P1, S1). But is this because they want to make their job easier? There's nothing in the passage to support that. (C) is out.

  4. D
    If there is consensus Remaining source text redacted.
    Why choice D is not credited

    (D) Is this consistent with Dworkin's views, as they are reflected in our main point and notes?

    Nope. Dworkin says that the interpretation of the law should be based on its internal logic, even when the consensus does not agree (P3, S5). Dworkin would definitely disagree with this.

  5. E
    Legal positivists misunderstand the Remaining source text redacted.
    Why choice E matches the stem

    (E) Is this consistent with Dworkin's views, as they are reflected in our main point and notes?

    Yes. Dworkin proposes a "middle ground" between natural law and legal positivism, according to our main point. So, Dworkin's approach takes elements from both, including "moral intuition" from natural law. So, it stands to reason Dworkin would agree that legal positivists "misunderstand the role of moral intuition in legal interpretation" — especially if legal positivists do not think moral intuition should play any role in legal interpretation.

    We should verify that legal positivists don't think moral intuition should influence legal interpretation. Reviewing the second paragraph, we'll see that legal positivists argue that moral intuition is completely separate from the interpretation of the law (P2, S1). On the other hand, Dworkin says, "[J]udges may be called upon to consult their own moral intuitions" (P3, S6). So, Dworkin would definitely agree with (E).

What this tests

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