Q14

[yli.angela]

I chose C because it seemed to refer to line 56, "...responsive to and informed by the conditions, constraints, and aspirations of the world in which the new legal problem has arisen."

I felt like that sentence suggested the case-by-case responses to "different legal situations" and "diverse theoretical approaches" but now I see that those theories are referring to Law and Eco, CLS, and etc.

Still, I don't see how D is supported anywhere in the passage.

[rinagoldfield]

Hey yli.angela,

Thanks for your post. Very tricky question!

(C) is really tempting. I see what you’re saying about how (C) seems to connect to the notion that legal opinions are "...responsive to and informed by the conditions, constraints, and aspirations of the world in which the new legal problem has arisen."

But we need to situate those lines in the bigger context of what the Law and Literature movement is all about. In the third paragraph, the author outlines the Law and Literature movement’s big point: legal opinions are "like artistic performances" in that "each judicial opinion attempts in its own way to promote a particular political or ethical value" (lines 44-47).

In "re-constituting" old legal texts to be responsive to the "conditions, constraints, and aspirations of the [modern] world," the judge must turn to necessarily subjective "political" and "ethical" values. Legal opinions thus derive from the particular political and ethical inclinations of the judge, just as works of literature derive from the particular aesthetic inclinations of the artist.

(D) is supported because "each judicial opinion" "translates" old legal texts according to "particular" values. Different judges will bring different values to bear on their opinions.

(C) is unsupported because the judge doesn’t objectively mediate between old legal texts and new legal challenges. Rather, the judge creates an "artistic" "translation."

(A) is contradicted. The Law and Literature movement is a new theoretical development, so its proponents probably don’t think that theoretical developments undermine the law.

(B) is out of scope. No specific claims about conservative judges are made.

(E) is also really tempting, I think! But the Law and Literature movement is about how judicial opinions reflect particular "values," not particular "theories of jurisprudence."

Does that make sense? Hope it helps.

[logicfiend]

I'm still confused by the explanation for why C is wrong, and am having a hard time understanding what exactly the language of the answer choice is saying.

Does "theoretical approaches" in choice C refer to the other "movements" mentioned in paragraph 2?

If yes, is C saying that judges will need to adopt the theoretical approaches of either the Critical Legal Studies movement, theories by the Law and Economic school or another approach in response to different legal situations?

The passage doesn't refer to the theories as "approaches" but the answer choice for 9 does, which is why I think this is a little confusing.

I understand the support for why D is right, but I want to make sure I understand fully why C is wrong.

[ajchedwidden]

(C) is wrong because it is subtly contradicted by the passage. Instead of a judge needing to adopt "diverse theoretical approaches" to writing opinions, in fact the Law and Literature movement advocates that judges adopt a single theoretical approach: to act as "translators" -- mediating between text and the legal problem to "re-constitute" the text. Albeit a complicated one, this is a single theoretical approach, and not the "diverse approaches" which answer (C) suggests.