PrepTest 124

Topic: Legal

Paragraph 1

• Paragraph note
  • Background on English common law (old unwritten laws) and the author on the role of history (need to know history to understand, old things still relevant today)
• Views, minor Meta-Structures, and the author's attitude
  • Definition of "common law": Unwritten legal code developed from custom (first sentence)
  • Author's view:
    • Common law can't be understood without history, as old cases, terms, and principles are still used today (first through last sentences)
  • Author's attitude: "weighs heavily" (first sentence); "archaic" (second sentence); "based solely" (second sentence); "Centuries-old custom" (third sentence); "not only ... but also with the cultural history" (last sentence); "cannot properly be understood without" (last sentence)

Paragraph 2

• Paragraph note
  • Phenomenon (studies don't acknowledge history) and two explanations (theoretical: ignore changes to treat law as a coherent whole; philosophical: history would make the law seem less logical)
• Views, minor Meta-Structures, and the author's attitude
  • List of two reasons why the study of common law doesn't focus on history (or doesn't focus on the practical contemporary significance of history), according to the author:
    • Theoretical reason: Modern jurisprudence treats common law as a logical whole, so acknowledging its changes through history would make common law seem less coherent (third through fifth sentences)
    • Philosophical reason: We must believe the law is logical and fair, and historical examples showing it's not fair would be discouraging to law students and the public (sixth and last sentences)
  • Author's attitude: "seldom" (first sentence); "ignore the practical contemporary significance" (first sentence); "partly theoretical and partly political" (second sentence); "consistently" (third sentence); "deemphasizes" (fourth sentence); necessary" (sixth sentences); "history shows the legal tradition to be far from unitary and seldom logical" (sixth sentences); "requires" (sixth sentence); "would be dispiriting for the student and demoralizing for the public" (last sentence)

Paragraph 3

• Paragraph note
  • Goodrich's solution (study common law as an evolving tradition, incorporating fiction, perception, and memory)
• Views, minor Meta-Structures, and the author's attitude
  • Goodrich's view:
    • Common law is "most fruitfully" studied as continually developing tradition (first sentence)
  • Comparisons, according to Goodrich:
    • The study of common law can be analogized to studying literature (second sentence)
    • In Goodrich's approach, fiction is as important as analysis, perception is as important as rules, and memory is as important as argument (third sentence)
    • Both historical rules and the rewriting/adaptation of those rules for modern times are included in studying law as a tradition (last sentence)

Main Point: English common law is steeped in history that must be considered, but academics rarely acknowledge its historical context due to theoretical and political reasons; however, one legal historian suggests a way to change that.

Phenomenon/Explanation and Problem/Solution: This passage uses two major Meta-Structures — a rarity on the LSAT. However, it's hard to fully capture this passage without referencing both. The first paragraph provides background information on English common law and the importance of history in studying common law. The second paragraph is a Phenomenon/Explanation paragraph.* The author establishes a phenomenon — academics almost never acknowledge the importance of history when studying English common law, even though a long historical view is necessary to fully understand the common law (P2, S1). The author provides two explanations: a political one and a theoretical one (P2, S2). Then, in the third paragraph, the author switches gears and introduces a Problem/Solution Meta-Structure.** If we consider the second paragraph's phenomenon a problem, a legal historian (Peter Goodrich) proposes a solution. He wants to treat the study of common law as a continually developing tradition and use some of the tools of literary analysis to understand its history (P3, S1-S4).

When a passage uses a Phenomenon/Explanation Meta-Structure, the author's opinion on the explanation(s) is the main point. When a passage uses a Problem/Solution Meta-Structure, the author's opinion on the solution(s) is the main point. When a passage uses both Meta-Structures, we'll need to incorporate both, as we did in our anticipated main point.

*We could also consider this a Paradox/Resolution paragraph, as academia's failure to address history when studying common law despite history's obvious importance is a major discrepancy that needs disentangling. 

**We could also consider this a Reporting a Viewpoint paragraph, as the author presents Goodrich's approach without much commentary (if anything, she must have a slightly positive view of it to present it in the light she does).

This is an interesting passage in that its development from paragraph to paragraph is logical, but those paragraphs don't really "gel" into a single argument the way that we normally see an RC passage come together. The first paragraph talks about the importance of history in common law; the second presents a related phenomenon and two explanations; and the third describes one historian's solution to better study common law. This Frankenstein's monster-like nature of the passage is reflected in our three-part Main Point anticipation.

However, this odd structure will help us as we progress through the questions. Because each paragraph has such a distinct role, we'll be able to quickly locate any information needed to anticipate what the correct answer will say or verify that an answer choice is supported.