Analogical reasoning, Legal reasoning by analogy, Henry Hart, Albert Sacks
Common Law | Judges | Litigation
This Article defends the practice of reasoning by analogy on the basis of its epistemic and institutional advantages. The advantages identified for analogical reasoning include that it produces a wealth of data for decisonmaking; it represents the collaborative effort of a number of judges over time; it tends to correct biases that might lead judges to discount the force of prior decisions; and it exerts a conservative force in law, holding the development of law to a gradual pace. Notably, these advantages do not depend on the rational force of analogical reasoning. Rather, the author contends that, as open-ended reasoning and analogical reasoning alike may sometimes result in incorrect decisions, these qualities of analogical reasoning make it a desirable method of deciding legal disputes.
Sherwin, Emily, "A Defense of Analogical Reasoning in Law" (1999). Cornell Law Faculty Publications. 840.
Published in: The University of Chicago Law Review, vol. 66, no. 4 (Fall 1999).