How do you properly incorporate the dissent into an exam response?

[blueleaves20]

We have read numerous dissenting opinions and I still have no idea how to properly incorporate it into an exam response. Tips?

[Renerik]

This would be best answered by your professors during office hours. Professors teach a certain way for their own reasons. They might want you to be able to contrast the reasoning between judgements, to support your analysis by referring to strong dissents, or to know the history of a certain train of thought (which just so happened to have come from a compelling dissent ex: Beetz' dissent in Re:Anti-Inflation). For some professors, the dissents don't matter. You'll only know by asking the ones grading your exams.

[Turtles]

12 hours ago, blueleaves20 said:

We have read numerous dissenting opinions and I still have no idea how to properly incorporate it into an exam response. Tips?

If you're going to critique existing law or a particular dissent, you may proceed by citing and restating some dissent reasoning up to the extent it agrees with your argument and noting anywhere you would differ from it (and why). Effectively, using the dissent as a source to support your thinking, not necessarily simply deferring to it as perfect and complete but rather as a springboard towards your ideas.

If you're going to argue in agreement with existing law or a particular decision, you may proceed by citing and restating the dissent and picking apart to what extent you think it is wrong and why it shouldn't undermine the correctness of what you're arguing. Effectively, using the dissent as a devil's advocate and picking it apart to show why you think it's not a valid attack on your argument, but being mindful there may be pieces from it you do agree with and would incorporate.

Personally, under the usual time crunch, I usually find it sufficient to just use some short quotes (e.g., "the spectre of unlimited liability") to convey the idea of a dissent but then immediately pulling it apart by attacking the arguments used for it, rather than spend any significant amount of time rewriting the whole dissent for the prof who has read the case 100 more times than me.

Though of course, depending on the type of class, the purpose of the question, and the prof, it may or may not be a worthwhile use of time. I have seen some very disappointed classmates who decided it was better to spend their time detailing their personal opinions rather than apply the authorities or apply the law to the facts at a detailed level. Different questions look for different types of responses, you gotta figure that out first. 

Edited March 20, 2023 by Turtles

[Mal]

You cite a dissent if:

(1) you are citing it for a proposition that doesn't have to do with the deciding reason (e.g. dissenting for other reasons),

(2) the area of law is unsettled and/or you believe that the reasoning in the dissent is stronger for your fact pattern suggesting that it might be enough to change the outcome, or

(3) it is settled law or weaker in your fact pattern but for completeness you mention it to discard. 

[QueensDenning]

People read dissents !? 

[Hayesy-B]

3 hours ago, QueensDenning said:

People read dissents !? 

People do readings!?

[mistertubby]

On 3/25/2023 at 6:00 PM, Hayesy-B said:

People do readings!?

people go to law school!?

[Ruthless4Life]

On 3/29/2023 at 11:34 PM, mistertubby said:

people go to law school!?

people read the law!?