Teaching Dissents

By Sherri Lee Keene. Full Text.

Judges’ perspectives and attitudes—and even their biases and assumptions—naturally find their way into legal analysis and decision-making. Yet this reality is something that the language of opinions tends to deny. Court opinions are often written to sound authoritative and sure, making legal decisions seem purely logical and channeling a tone of inevitability. The way that opinions are written tends to obscure the human aspects of legal decision-making and mask subjectivity. Indeed, as judges select and interpret facts and draw inferences, a judge’s written analysis often neglects to even acknowledge that this is occurring. In doing so, judges can hide the turning points in a case where they favor one viewpoint over another based on their own experiences and ideas about how the world works.

The very presence of dissents challenges the myth of legal decision-making as objective and straight-forward; in speaking back to the court’s opinion, a dissent lays bare the complexities and reveals points of uncertainty in a case. In contrast to the voice of the majority, which often seeks to draw attention away from conflicts, dissents can show where choices were made in the decision-making process, and where others could have been made. In exposing the ambiguity in a case, dissents make room for alternative realities and experiences that were not raised by the majority and show where their consideration could have made a difference.

This Article considers the role that dissenting opinions can play in preparing students to be critical readers of judicial texts who look beyond a court’s language to understand the law and situate court opinions in a broader social and cultural context. This Article provides practical suggestions about how law teaching can incorporate dissents—and other writings—to better prepare law students to engage deeply with the law and identify spaces where they can challenge existing precedent and advocate for positive change.