Sunstein,+'On+Analogical+reasoning'


 * On Analogical Reasoning – Sunstein**

· Lawyers and non-lawyers use analogical reasoning as a way of considering legal and moral questions. · It provides distinctive advantages over other forms of thought deemed superior. · Analogical reasoning can provide meaning to an assessment of whether a case is “rightly decided”.


 * __Analogical Reasoning in the Law__**

1) A has characteristic X 2)  B shares characteristic X 3)  A also has characteristic Y 4)  As A and B share characteristic X, we can conclude that B shares characteristic Y as well.
 * //Model of analogical reasoning outside the law://**

1) Fact pattern has characteristic X, or characteristics X, Y, Z 2)  Fact pattern B differs from A in certain ways but shares X (or X,Y,Z) 3) The law treats A in a certain way 4)  B shares certain characteristics with A; the law should treat B as it treats A
 * //Analogical reasoning in law://**

· This reasoning does not guarantee truth – it is based on the idea that a known and relevant similarity is reason to believe that other similarities exist. · In order to operate properly, the similarities between A and B must be “relevantly” similar and they must not hold “relevant” differences. This is a major challenge – differences a) must not be distinct on the basis of relevant precedents, b) cannot be fashioned into the basis for a distinction that is genuinely principled.


 * __Legal Analogical reasoning has four features:__**


 * 1. Principled consistency:** coherent fit with other judgment.
 * 2. Focus on particulars:** ideas developed from details rather than imposed from above – **//bottom-up thinking//**
 * 3. Incompletely theorized judgments:** operates without a comprehensive theory that accounts for the particular outcomes it yields.
 * 4. Principles operating at a low or intermediate level of abstraction**: reasoning usually operates without relying on principle of “the right” or “the good”.

· Overall: analogical reasoning works when an incompletely theorized judgment about one case is invoked to come to terms with another lacking a judgment as of yet, which bears much (but not all) in common with the former. · Different types of analogies: some depend on a contestable substantive argument, others are constitutive of constitutive thinking based on the shared way humans order their world.


 * __Other Forms of Legal Reasoning__**

· Deductive. Bring general theory to bear on particular cases, and disregard seemingly counterintuitive nature of outcomes that can be compelled by the theory. · Examples: utilitarianism and economic analysis of law.
 * 1. Top-Down General Theories:**

· Compares seemingly plausible general theories with plausible outcomes in cases. · Particular views on cases are adjusted to conform to the general theory and vice-versa – to reach an equilibrium.
 * 2. The Search for Reflective Equilibrium**

Analogical reasoning is less ambitious – doesn’t seek horizontal+vertical consistency.
 * Note: approaches 1 and 2 are not top-down, they rely on judgments about particular cases. Reflective equilibrium places a premium on the understanding of individual judgements as well as the development of general principle to account for those judgments; horizontal and vertical consistency between cases can therefore be achieved.

· Reasoning by analogy with reference to incompletely theorized practices rather than incompletely theorized judgments. · May consider social practices similar to those at issue in the case. Parallel to CML tradition – social custom giving rise to law, rather than solely the imposition of judicial will.
 * 3. Reasoning by Analogy – Incompletely Theorized Practices:**

· Resolution of cases through use of semantic principles relating to grammar and diction. · Linked to analogical reasoning and application of general theories.
 * 4. Classification**

· A form of instrumental rationality, which takes into consideration the outcome and effects of the decision being made. · In contrast, analogical reasoning does not explicitly take into account the question of social consequences. · Sunstein supports a large role in law for means-ends rationality.
 * 5. Means-Ends Rationality**

· Bentham, science: analogical reasoning is too static attached to existing holding and convictions. · Backwards-looking, incremental character can be an obstacle to justified change. · Without social consensus, reasoning by analogy is indeterminate. Agreement on fundamental matters is necessary. · Reasoning by analogy could therefore be said to merely uncover agreement where it already exists. · Belief: fixed points of inquiry within law make analogical reasoning easier, but analogical reasoning leads to difference between the legally correct outcome and the morally correct outcome. · However, analogical reasoning may not depend on deep social consensus; it may be sufficient to depend on a degree of agreement that allows the process of reasoning to begin.
 * __Objections and Alternatives to Analogical Reasoning__**
 * //A. Objections://**
 * 1. Absence of Scientific, External or Critical Perspectives**
 * 2. Indeterminacy; Dependence on Consensus**

· Process of analogical reasoning is not adequately specified. Once it is specified, it will emerge as a poor version of more general theory or reflective equilibrium. · This objection is complicated. Analogical reasoning requires the recognition of degrees of similarities and difference from everything else, and it therefore makes no sense until the imposition of some pattern onto fact. Differences, i.e., can be identified because a principle exists to demonstrate them. · However, this does not completely discount the helpfulness of analogical reasoning – at the least, they help illuminate freestanding principles.
 * 3. The Search for Relevant Difference – The Inevitable Need for Criteria Never Supplied by Analogical Reasoning.**


 * //B. Alternative Accounts and the Comparative Advantages of Analogical Thinking//**
 * Compare with…**

Is analogical reasoning, without a comprehensive theory to unify the concept, an incomplete version of reflective equilibrium? Analogical reasoning appears inferior on several counts. However, it has some **distinct advantages**, namely: · 1. Reasoning by analogy is suited to limited time and capacity. Reflective equilibrium is more demanding and may not reflect practical constraints. · 2. RbyA allows people who do not agree in principle to agree on particular outcomes. · 3. RbyA may facilitate moral evolution over time by allowing openness to new facts and perspectives. Reflective equilibrium might, by contrast, cause a legal culture become calcified once equilibrium is reached. · 4. RbyA operates with precedent – fixed points. Everything could be revised in the search for reflective equilibrium.
 * 1. The Search for Reflective Equilibrium**

· Dworkin’s criticism of legal positivism is based on view that law = rules proceeding from authoritative sources. Argue that there is a normative dimension to what the law is: “law as integrity”, in making governing text as good as possible. · But, Dworkin says little about analogical reasoning – how lawyers really think. · Sunstein: Full integrity requires some sort of principles consistency that analogical reasoning can yield.
 * 2. Hercules, Harlan and Integrity**

· Primary advantage of economic analysis: disentanglement of social consequences of legal rules that may be counterintuitive. Consequences cannot be solely determined by examining other judicial holdings. · However, the repertoire of inquiry through economic analysis is thin, as within its context wealth maximization is the goal of legal rules. RbyA, on the other hand, can take into account diverse and plural goods at stake and make choices between them, as it is not tied by a unitary theory.
 * 3. General Theories and Economic Analysis of Law**