Law 165 - Dissenting Opinions
Richard M. Re
M. Phil. University of Cambridge, 2005
J.D. Yale Law School, 2008
Judicial dissents occupy a conspicuous but unsettled place in the U.S. legal tradition. In the Supreme Court, for instance, dissenting opinions have gone from rare to common. And while so-called “prophetic dissents” make up an important part of legal culture, the proper circumstances for dissent remain unclear. This course uses the genre of the dissenting opinion as a window into broader issues of writing style, judicial decision-making, and legal change. Consider a few illustrative questions. Is dissent ever impermissible, perhaps because the Court must present a “unified front” against political criticism? Is it appropriate for justices to engage in “persistent dissent,” meaning that they repeatedly reject certain precedents? What, if anything, determines whether a dissenter should exaggerate or minimize the potential consequences of a majority decision? And, should a dissenting author feel special freedom to break from the norms of judicial style? To answer these and many other questions, we need an account of what makes dissenting opinions justifiable, who dissenters’ intended and actual audiences might be, and how the law can shape the content of a dissent. Discussion will focus on the U.S. Supreme Court but also take up examples from other courts and judicial systems. Readings will partly consist of acclaimed dissenting opinions, as well as scholarly reflections by famous jurists. Students will prepare two short response blurbs and circulate an annotated passage from a dissenting opinion of their choice.
Students will learn quite a bit about the dissenting opinion’s history, uses, and risks. More generally, students will sharpen their understanding of legal writing, including both stylistic and strategic issues. Finally, the course will foster enhanced appreciation of how, why, and when legal doctrine evolves over time.
|Richard Re||20S||165||LEC 4||Unscheduled||1.0||No||No|