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Hastings Law Journal

Article Title

In Defense of Dissents

Abstract

Critics of judicial dissents argue that the dissent is an exercise in futility that detracts from the legitimacy that the law requires and from the prestige of the institution that issues the law. Justice Brennan, the third annual Mathew 0. Tobriner Memorial Lecturer, defended the role of dissents by discussing their functions and importance to the judicial process. He explained how the dissent directs attention to perceived difficulties with the majority's opinion and emphasizes the limits of a majority decision that sweeps, so far as the dissenters are concerned, unnecessarily broadly. Furthermore, by infusing different ideas and methods of analysis into judicial decision-making, the dissent prevents the process from becoming rigid or stale. While acknowledging that dissent for its own sake has no value, Justice Brennan argued that when significant and deeply held disagreement exists, judges have a responsibility to articulate it.

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