The authors would be most likely to disagree over whether

shunhe on July 15, 2020

Hi @jingjingxiao11111@gmail.com,

Thanks for the question! Definitely one that’s worth explaining, since this passage is pretty tricky. So we’re asked for something that both of the passages would disagree on. Clearly, both of the authors spend a lot of time talking about judicial candor. So what do both of the authors think exactly?

Let’s take a look at passage A first, at the last paragraph. Here, the author of passage A tells us about a problem with a prudential defense of judicial candor. In other words, defending it just based on practicality misses something. The author seems to prefer a second way to defend judicial candor, which is “by appealing to moral principles rather than prudential considerations” (lines 30-31). So in other words, the author of passage A would defend judicial candor based on general morality and ethics as opposed to specific practical benefits. And because of this, author A would think that judicial candor should always be followed, like some kind of Kantian categorical imperative.

Now what does the author of passage B think? Well, author B clearly thinks that judicial candor is important, and indeed “an essential prerequisite of all other restraints on abuse of judicial power.” But then, in the last paragraph, the author of passage B steps back for a second, and asks a couple of rhetorical questions. Does what author B said earlier mean that candor is an unshakable obligation, and that there aren’t cases in which the benefits of judicial deception outweigh the cons? Well, author B doesn’t think so. Author B leaves open the possibility that not having judicial candor might be ok in some cases (taking, ultimately, more of a utilitarian approach).

So that’s a pretty big disagreement in how these two authors approach judicial candor, so let’s see if there’s an answer choice that reflects it. Take a look at (E), which says that the authors would disagree over whether it’s right to view judicial candor as an obligation that can be overruled in certain circumstances. And this sums up perfectly what we said earlier. Author A, who thinks that judicial candor is a moral duty, would say that judicial candor can’t be overruled, and disagree with (E). Author B, who thinks that there might be some cases in which the cost-benefit calculus would run out in favor of not having judicial candor, would agree with (E). And so the authors disagree over (E), which makes it the correct answer.

Hope this helps! Feel free to ask any other questions that you might have.

kens on December 28, 2020

I understand this question, but I don't quite understand why question 18 is D? If A believes that judicial candor should always be followed, how can A also claim that lack of judicial candor has some benefits? I guess I don't understand the part where A agrees with B on lack of judicial candor. Please help and thanks in advance!

jingjingxiao11111@gmail.com on December 30, 2020

Hi I am not an instructor and have struggled with this passage for several days. But I think that I can explain your confusion after I read our instructor’s responses, the passage, and the questions 18 and 20 several times.

Let us break apart the two passages by paragraphs

Paragraph 1 of Passage A: Some people oppose judicial candor, meaning that they support the notion that judges don’t have to believe in the rationale behind the judicial decisions they are making. These people believe that strict adherence to judicial candor is naïve and foolhardy.

jingjingxiao11111@gmail.com on December 30, 2020

Paragraph 2 of Passage A: There are two ways of defending judicial candor. The first is to gather prudential reasons or practical reasons by arguing that judicial candor can produce the most prudential or practical result so judicial candor rule is justified by that reason. Or, proponents of judicial candor have argued that judicial candor produces transparent decision making that in turn leads to better guidance to lower courts and litigants, or that it strengthens the institutional legitimacy (legitimacy of an institution such as a court to generate authority such as judicial decisions) of the courts.

Paragraph 3 of Passage A: this final paragraph points out a flaw with prudential defense of judicial candor. That is, the prudential defense of judicial candor does not acknowledge the normative force (A norm that can be defined as a standard of behaviour) that judges should not lie. In our ordinary moral thinking, duties of truth telling are not justified only because telling the truth produces good outcomes, as prudential defense of judicial candor argues. Rather, the duty to tell the truth is an independent constraint on our action. This suggests a second way to defend the principle of judicial sincerity which is to appeal to moral principles rather than prudential considerations.

Overall, Passage A believes that the people mentioned in paragraph 1 of Passage A, namely some legal theorists who oppose judicial candor, are wrong because judicial candor is always justified. Judicial candor, which is always justified, can be defended in two ways. One is to gather prudential reasons or practical reasons, which is not the best way to defend judicial candor as the final paragraph points out a flaw with prudential defense of judicial candor. The flaw with prudential reasons (namely good outcomes cannot always justify the actions that produce them) in defending judicial candor suggests that a second way, namely appealing to moral principles, is better at defending judicial candor.

Passage A totally believes that judicial candor should always be followed because it is an obligation that can never be overruled. So the author of passage A disagrees with E) E: it is correct to view judicial candor as an obligation that can be overruled in certain circumstances. Author of Passage A believes that judicial candor cannot be overruled under any circumstances because Passage A refers to judicial candor as a moral principle or duty, and moral principle or duty by definition cannot be overruled and must always be followed under any circumstances.

jingjingxiao11111@gmail.com on December 30, 2020

Now let us look at Passage B paragraph by paragraph:
Paragraph 1: The requirement that judges give reasons for their decisions serves to restrict judge’s power. But do judges believe the reasons behind their decisions? There are reasons to think so.

Paragraph 2: When there are no obligations to be truthful, the power of the judges would be greatly enhanced, since now judges can freely distort or misstate their reasons without any sanctions such as criticisms and condemnations that honest disclosure of their motivations must entail. In a sense, truthfulness is essential for all other constraints on abuse of judicial power, for the limitations imposed by constitutions, statutes and precedents count for little if judges no longer need to be frank in telling their judicial decisions. Furthermore, lack of candor is likely to be detected, and its detection would only make the public more cynical about the judicial system.

Paragraph 3: Do these points raised in paragraph 2 demonstrate that judicial candor is an unshakable obligation that must be followed under any circumstances? Do these points refute the argument that lying in judicial decisions is warranted because lying in judicial decisions yields some net benefit? Probably not. But these points raised in paragraph 2, which support judicial candor, suggest that any cost benefit calculus (a particular method or system of calculation or reasoning) must take into account of the large losses of the institution that result from people not trusting the honesty of their judges and from an inability to debate on the true reasons behind the judges’ decisions. These points raised in paragraph 2 are enough to show that there is strong presumption in favor of judicial candor.


Overall, passage B is less adamant about supporting judicial candor than passage A, since passage B in the final paragraph concedes that the points raised in paragraph 2 of passage B in favor of judicial candor are not enough to demonstrate that judicial candor is an unshakable obligation that must be followed under any circumstances. So the author of passage B agrees with E) E: it is correct to view judicial candor as an obligation that can be overruled in certain circumstances. In fact, passage B specifically suggested that points in favor of judicial candor only proves that any cost benefit calculus must take into account of the large institutional losses that result from people not trusting their judges and from people’s inability to debate on the true reasons behind the judges’ decision. Thus, these points raised in paragraph 2 of passage B do not refute completely that lack of judicial candor is always unacceptable.

To answer your question about question 18 which states that each author implies that judicial candor D)“could conceivably have positive benefits under certain circumstances,” I would guess that the difference between question 18 and question 20 is that question 18 refers to the fact that both authors implicitly concede that lack of judicial candor could have positive benefits. Question 20, however, states that the authors disagree on whether judicial candor can be overruled under certain circumstances. Just because question 18 states that lack of judicial candor could potentially have benefits doesn’t necessarily mean lack of candor is acceptable and that judicial candor can be overruled.

I guess question 18 is saying that lack of judicial candor can have benefits as implicitly suggested by both authors, though in question 20, the two authors disagree on whether lack of judicial candor is acceptable (or whether judicial candor can be overruled to become lack of judicial candor under certain circumstances). Passage A suggests lack of candor can have benefits, but Passage A also states that judicial candor is a moral principle to be always followed regardless of the benefits that lack of judicial candor could potentially bring.

I only got down to these summaries by reading over our instructor’s answers for both question 18 and question 20 and the passage itself several times. Since your question is complicated as it relates to both question 18 and question 20, I am not sure if I answered it correctly. Please feel free to correct me. I hope you find this useful. Good luck with your studies!