PrepTest 82, Section 4, Question 21
Passage A
Some legal theorists reject the notion that judges must believe what they say in their opinions. They argue that an emphasis on the need for honesty in judicial decision making ignores the myriad institutional considerations that judges must continuously balance in performing the prudential functions assigned to them. To argue for rigid adherence to a norm of sincerity is, they say, naive, foolhardy, and even dangerously utopian.
There are two ways of defending the principle of judicial sincerity. The first is to marshal prudential reasons that support the principle. If it can be shown that following a general rule favoring sincerity produces the most prudential outcomes�whatever those happen to be�then the rule is justified. Accordingly, proponents of greater candor in the courts have argued, for example, that transparent decision making provides better guidance to lower courts and litigants, or that it strengthens the institutional legitimacy of the courts.
The problem with a prudential defense of judicial candor is that it fails to acknowledge the normative force behind the idea that judges should not lie or deliberately mislead in their opinions. In our ordinary moral thinking, duties of truth telling are not justified merely when they produce good outcomes. Rather, the duty to speak truthfully and openly is an independent constraint on our actions. This suggests a second way to defend the principle of judicial sincerity, namely, by appealing to moral principles rather than prudential considerations.
Passage A
Some legal theorists reject the notion that judges must believe what they say in their opinions. They argue that an emphasis on the need for honesty in judicial decision making ignores the myriad institutional considerations that judges must continuously balance in performing the prudential functions assigned to them. To argue for rigid adherence to a norm of sincerity is, they say, naive, foolhardy, and even dangerously utopian.
There are two ways of defending the principle of judicial sincerity. The first is to marshal prudential reasons that support the principle. If it can be shown that following a general rule favoring sincerity produces the most prudential outcomes�whatever those happen to be�then the rule is justified. Accordingly, proponents of greater candor in the courts have argued, for example, that transparent decision making provides better guidance to lower courts and litigants, or that it strengthens the institutional legitimacy of the courts.
The problem with a prudential defense of judicial candor is that it fails to acknowledge the normative force behind the idea that judges should not lie or deliberately mislead in their opinions. In our ordinary moral thinking, duties of truth telling are not justified merely when they produce good outcomes. Rather, the duty to speak truthfully and openly is an independent constraint on our actions. This suggests a second way to defend the principle of judicial sincerity, namely, by appealing to moral principles rather than prudential considerations.
Passage B
The requirement that judges give reasons for their decisions�reasons that can be debated, attacked, and defended�serves a vital function in constraining the judiciary's exercise of power. But must judges actually believe the reasons they give? There are reasons to think so.
In the absence of any obligation to be candid, the constraints on judges� powers would be greatly diluted, since judges who are free to distort or misstate the reasons for their actions can avoid the sanctions of criticism and condemnation that honest disclosure of their motivation may entail. In a sense, candor is an essential prerequisite of all other restraints on abuse of judicial power, for the limitations imposed by constitutions, statutes, and precedents count for little if judges feel free to believe one thing and say another. Moreover, lack of candor is likely to be detectable, and its detection would only serve to increase public cynicism about the judicial system.
Do these points demonstrate that candor is an unshakable obligation of judicial behavior? Do they rebut the argument that judicial deception is warranted in cases where it yields some net benefit? Probably not. But they do suggest that any cost-benefit calculus must take account of the large institutional losses that would result from a lack of trust in the honesty of judges and from an inability to debate and criticize the true reasons for their decisions. These points suffice to show that there is a strong presumption in favor of judicial candor.
Passage A
Some legal theorists reject the notion that judges must believe what they say in their opinions. They argue that an emphasis on the need for honesty in judicial decision making ignores the myriad institutional considerations that judges must continuously balance in performing the prudential functions assigned to them. To argue for rigid adherence to a norm of sincerity is, they say, naive, foolhardy, and even dangerously utopian.
There are two ways of defending the principle of judicial sincerity. The first is to marshal prudential reasons that support the principle. If it can be shown that following a general rule favoring sincerity produces the most prudential outcomes�whatever those happen to be�then the rule is justified. Accordingly, proponents of greater candor in the courts have argued, for example, that transparent decision making provides better guidance to lower courts and litigants, or that it strengthens the institutional legitimacy of the courts.
The problem with a prudential defense of judicial candor is that it fails to acknowledge the normative force behind the idea that judges should not lie or deliberately mislead in their opinions. In our ordinary moral thinking, duties of truth telling are not justified merely when they produce good outcomes. Rather, the duty to speak truthfully and openly is an independent constraint on our actions. This suggests a second way to defend the principle of judicial sincerity, namely, by appealing to moral principles rather than prudential considerations.
Passage B
The requirement that judges give reasons for their decisions�reasons that can be debated, attacked, and defended�serves a vital function in constraining the judiciary's exercise of power. But must judges actually believe the reasons they give? There are reasons to think so.
In the absence of any obligation to be candid, the constraints on judges� powers would be greatly diluted, since judges who are free to distort or misstate the reasons for their actions can avoid the sanctions of criticism and condemnation that honest disclosure of their motivation may entail. In a sense, candor is an essential prerequisite of all other restraints on abuse of judicial power, for the limitations imposed by constitutions, statutes, and precedents count for little if judges feel free to believe one thing and say another. Moreover, lack of candor is likely to be detectable, and its detection would only serve to increase public cynicism about the judicial system.
Do these points demonstrate that candor is an unshakable obligation of judicial behavior? Do they rebut the argument that judicial deception is warranted in cases where it yields some net benefit? Probably not. But they do suggest that any cost-benefit calculus must take account of the large institutional losses that would result from a lack of trust in the honesty of judges and from an inability to debate and criticize the true reasons for their decisions. These points suffice to show that there is a strong presumption in favor of judicial candor.
Passage A
Some legal theorists reject the notion that judges must believe what they say in their opinions. They argue that an emphasis on the need for honesty in judicial decision making ignores the myriad institutional considerations that judges must continuously balance in performing the prudential functions assigned to them. To argue for rigid adherence to a norm of sincerity is, they say, naive, foolhardy, and even dangerously utopian.
There are two ways of defending the principle of judicial sincerity. The first is to marshal prudential reasons that support the principle. If it can be shown that following a general rule favoring sincerity produces the most prudential outcomes�whatever those happen to be�then the rule is justified. Accordingly, proponents of greater candor in the courts have argued, for example, that transparent decision making provides better guidance to lower courts and litigants, or that it strengthens the institutional legitimacy of the courts.
The problem with a prudential defense of judicial candor is that it fails to acknowledge the normative force behind the idea that judges should not lie or deliberately mislead in their opinions. In our ordinary moral thinking, duties of truth telling are not justified merely when they produce good outcomes. Rather, the duty to speak truthfully and openly is an independent constraint on our actions. This suggests a second way to defend the principle of judicial sincerity, namely, by appealing to moral principles rather than prudential considerations.
Which one of the following is most analogous to the claim regarding judicial candor made in the second sentence of the second paragraph of passage B?
Juries must be selected from as representative a selection of the population as possible. Otherwise, their verdicts cannot be trusted to be unbiased.
Artists often complain that commercial demands force constraints upon their art. However, many of the greatest works of art have been created by artists working within very restrictive constraints.
The data presented in support of a scientific theory must meet conditions such as relevance and sufficiency. But a presumption of all such conditions is that the data itself is accurate.
In certain competitive activities, competitors can gain an advantage by deceiving their opponents. As long as the deception does not violate the rules of the competition, it is not considered unethical, but is instead considered to be part of the competition.
In many cases, a doctor may determine that a patient is not at any significant risk for suffering side effects from a prescribed medication. However, even in such cases doctors have a professional obligation to fully and honestly discuss all possible side effects.
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