LSAT 82, RC Passage 3, Judicial Candor (comparative), LSATHacks

Paragraph Summaries

Passage A

1. Some critics say we shouldn’t require judges to believe what they write. Judges have a lot of conflicting demands in their work, and requiring honesty may be too much, critics say.
2. We could try to argue that honesty is good because it leads to good outcomes. (i.e. Prudential outcomes). Maybe honesty leads to more guidance to lower courts or institutional legitimacy?
3. But this is shortsighted. We don’t tell the truth only when it leads to good outcomes. We tell the truth because it is morally right to do so. Therefore, we can argue judges should tell the truth because it is their moral duty to do so.

Passage B

1. Judges have to give reasons in their decisions. This is important in keeping judges accountable. But, do judges believe their reasons? Probably.
2. If judges weren’t honest, they could abuse their power by lying about their reasoning. Honest reasons constrain a judges actions. We can probably also figure out when judges are lying, and lose faith in the justice system if we think they are.
3. Do the arguments above show that judges must be honest, and that they should do so even if it is a bad idea? Probably not. But, when judging the benefits of judicial honesty we should take into account the fact that the public would lose trust in judges if judges lied.

Analysis

Wow, what a set of passages. Passage B has got to be one of the most subtle RC arguments I’ve seen.

We’ll get into the passages, but first let’s get one big thing out of the way: what is candor? It’s just a fancy word for honesty.

Ok, so what does judicial honesty mean? Well, judges do two things at trial:

1. Judges give a verdict: they say who wins the case.
2. Judges give reasons: they say why they gave their verdict.

So candor/honesty refers to the second thing. When a judge says “guilty” and they explain their reasoning, are they being honest?

Candour is not referring to whether judges lie during a trial, but instead only to the honesty of their written reasons. Also, these passages do not apply to a jury trial. In a jury trial, juries give the verdict, not judges, and there are no written reasons. Hence, no opportunity for candor in the way these passages are discussing.

Now, let’s talk about the different points of view in these passages. Basically, there are three groups:

Cynical legal theorists: They say that judges must sometimes be dishonest, for valid reasons. E.g. Maybe a trial judge thinks that a supreme court judgement is stupid, but the judge is compelled to follow the judgement and appear to follow it sincerely.

Author A: They think the best defence against the cynics is to say that lying is morally bad and judges shouldn’t lie for this reason.

Author B: They think judges are obliged not to lie, and also that judges shouldn’t lie. But, unlike the author of passage A, they do not have an absolute position. They agree we should have a cost benefit analysis of lying (see paragraph 3). But, unlike the cynics, the author of passage B implies the costs of lying are greater than the benefits.

Neither author actually rebuts these the cynics directly. Let’s start with the arguments of passage A.

Passage A: Whether or not lying works, you shouldn’t

In paragraph 2 says that we could in theory make a practical argument that lying leads to bad outcomes.

The author then leaves this thread hanging! They don’t actually say that lying does lead to bad outcomes. They merely conclude that arguing on that basis would be unsatisfactory.

That is not very convincing. They’ve failed to address the cynics’ point. The fact that people have made arguments that lying is bad doesn’t mean those arguments are correct, and the author fails to tell us what they think of those arguments.

Instead, they make a moral argument. Lying is bad on its own sake, so don’t do it.

That’s it. That’s their whole argument against the cynics. The cynics were making a practical argument, so this is hardly a reply at all.

Passage B: Judges ought to be truthful, else we could not constrain them

Passage B makes an interesting and subtle argument. They more or less admit, in paragraph 3, that in some cases there would be a benefit to judges lying. The author says their argument probably doesn’t “rebut the argument that deception is warranted….in cases where….it yields….benefit”.

So this means, in isolation, it can make sense for judges to lie. But, the author nonetheless argues that judges should not lie. Why?

Basically, their argument is as follows:

1. Right now, we oblige judges to be honest. The author doesn’t say exactly how we do, they probably mean some mixture of legal penalties and also unwritten rules that those who appoint or elect judges will be displeased if the judges openly and routinely lie.
2. Without this current obligation, we’d have much less ability to constrain judges. We couldn’t criticize or condemn them, basically honesty is a requirement for all other constraints on judges. [This sentence is weak, the author should have said a requirement for honesty is the foundation of constraining judges]
3. Also people could probably tell if judges were lying. If people thought judges were lying then people would become cynical about the legal system.

As arguments go this is decent but not bulletproof. The author themselves says as much! In the first two sentences of paragraph 3 the author admits the weaknesses of their position. They say they haven’t proven that judges need to be honest, and also that it’s indeed possible that in many specific circumstances there would be a benefit to judges lying.

But, against these weak points the author appeals to the big picture: overall, if judges are seen to be liars who cannot be constrained, there would be massive losses of trust in legal institutions. For this reason, we ought to be in favour of obliging judges to be honest.

There’s sense to this. There are many situations where it can make sense in the short term to lie, and yet making the right short term move is a terrible strategy. It is far, far, far easier to live life as an honest person with a reputation for honest. Liars tend not to do well in the long run. So, the author’s argument is this: allowing judges to lie when it made sense would be a good short term move but a terrible long term move.

Note that the author seems to waver between two ideas:

1. That judges have an obligation to be candid
2. That judges should be candid

Is there an obligation to be candid?

The part I found strange is that the author was talking about an obligation, but seemingly hadn’t shown that any obligation did exist. It seemed they were merely arguing we should have an obligation.

But, in fact the author did show there is such an obligation. The first sentence of paragraph 2 is key here. The author says, basically, that without an obligation, “the constraints on judges’ powers would be….diluted”.

This is a conditional statement. It says: No obligation —> powers would be diluted

But, this is the real world. The powers are not diluted (since “would be” indicates a hypothetical”. So, we take the contrapositive and get:

powers not diluted —> obligation exists

The author doesn’t say what kind of obligation this is, but it does exist, whether it be legal, or practical, or traditional, or any of the other things that can oblige humans.

Note that author B talks about doing a cost benefit analysis of candor (line 55). This is distinct from author A, who believes candor is a moral duty not to be wavered from.

Key points to note

These two passages are some of the subtlest RC arguments I’ve seen in a while. There are a few key points you should retain though:

• No one directly answers the cynics. The cynics’ argument was that sometimes it is good the judicial system for judges to lie. Both authors take indirect approaches but do not necessary deny the possibility that in some circumstances lying does have a short term benefit.
• Some people argue that lying is bad. Both author A and B mention this, so it may be a point they agree on.
• Both authors A and B think judges shouldn’t lie.
• Author B is the only one who directly argues for an obligation not to lie. Author A also appears to believe this (First line paragraph 1, for example), but their argument is more focussed on morality than obligation.
• Author B is the only one who makes an in depth discussion of the functions of judicial reasoning. Making judges write their reasons down keeps judges accountable. And if judges can lie about their true reasoning, this undermines accountability and trust.
• Author B makes a cost-benefit analysis of judicial cantor (line 55, 3rd paragraph). Whereas the author of passage A argues in their third paragraph that judges should be honest no matter what, even if it is harmful. Only A believes candor is a moral duty.

Cost Benefit Analysis

Several questions address the authors’ split on morality vs. cost benefit analysis. This is an important distinction. The authors reach the same conclusion, but with radically different reasoning processes.

Both morality and cost-benefit analysis have their strengths and weaknesses. It is pure foolishness to use only one and never the other.

Basically, author B would be willing to flip and argues for lies and deceit if he thought the payoff was large enough.

As for author A, taken to the extreme they might argue that nothing justifies lying. Even if a judge thought they could prevent some disaster by lying and save millions of lives, the judge shouldn’t do it, no matter the consequences.

In general, you can more readily trust someone who uses morality for their decisions, and you should be mindful of how someone who uses only cost-benefit analysis will act: they could be quite ruthless. On the other hand, try changing the mind of someone who uses morality for decisions and is wrong. It can lead to great troubles.

Anyway, the point is that the authors’ forms of reasoning are radically different: author A uses moral reasoning and author B uses cost benefit reasoning. So even though authors A and B agree in their conclusions, they’re very far apart in terms of principles and could easily have come to opposite conclusions.

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