Book Review: Legal Reason: The Use of Analogy

This article is reprinted with permission from the November 17, 2005 edition of the New York Law Journal. © 2003 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited.

Thursday, November 17, 2005
New York Law Journal p. 2, col. 3
Copyright 2005 ALM Properties, Inc. All rights reserved.

Legal Reason: The Use of Analogy in Legal Argument, by Lloyd L. Weinreb
Reviewed by Philip R. Schatz

The archetypal legal argument analogizes one case to another: my case is like a prior case, so the rule of that prior case should apply to my facts. Such ‘analogical argument’ is a defining feature of legal briefs and judicial decisions. It is the cornerstone of legal education, where budding lawyers are trained to think ‘like a lawyer’ and discern which similarities matter. It is the foundation of the doctrine of stare decisis, that like cases should be decided alike. And it is the principal engine for the incremental development of the common law.

Given the central role of analogy in legal argument, it comes as something of a surprise to learn that the form of argument is perceived so negatively by many influential academics. Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit condemns analogical argument as the cause of ‘many pernicious judicial doctrines.’ Other academics dismiss such argumentation as logically flawed and unreliable. Analogical argument, they complain, is unprincipled and subject to judicial whim. A system less reliant on analogy would lead to results that are more predictable and more logical.

A desire for certainty is a familiar and understandable refrain in the long history of our legal system. The common law is messy and approximate. Courts sometimes follow prior precedents to results that are unpredictable, illogical, or downright stupid. A system ruled by logic, and less judicial discretion, might yield more certain results.

Yet, such a system would also be more mechanical, inhumane, and unfair. As Harvard University of Law Professor Lloyd L. Weinreb illustrates in his trenchant ‘Legal Reason: The Use of Analogy in Legal Argument,’ justice, not certainty, is the highest goal of our legal system. Our system’s reliance on judicial discretion and the weighing of analogies is ‘our safest, least treacherous path to a just social order.’ A judge’s job, after all, is not to find some illusory ‘right’ answer for all occasions. Rather, it is to decide a concrete dispute involving unique facts, based upon past cases and competing policy considerations, under disabilities of limited time, limited resources, and the arguments and evidence presented. Under such circumstances, as Cardozo explained, judicial decisions are nothing more than ‘provisional hypotheses, born in doubt and travail, expressing the adjustment which commended itself at the moment between competing possibilities.’ Judges are frequently presented with multiple strands of precedent that could be used to support different, even opposite, results. Our system relies upon the experience and good will of the solitary judge to weigh the doubts, make the adjustments, and render as fair and supportable a decision as the circumstances permit.

Judges, like everyone else, are rooted in historical time and bound to a greater or lesser extent by invisible chains of personal bias, so decisions are occasionally reached that, in hindsight, are profoundly misguided. A later court, enlightened by experience, changes course. Forty years after deciding that a wiretap is not a search or seizure under the Fourth Amendment, with a greater understanding of the threat of advancing technologies on personal privacy, the Supreme Court changes its mind. Far from being a flaw, the ability to shift course is part of the glory of the common law system.

As Mr. Weinreb compellingly contends, the primary goal of justice requires continuous reevaluation and reconsideration of conclusions with an appreciation of that possibility of error that infects all human judgments. A judicial decision is ‘not a proof; it does not afford certainty, and reasonable persons may disagree. But in law, as in human affairs generally, a proof is not to be had.’ No rule or formula can encompass the infinite variety of human experience. The quest for certainty is doomed to frustration and misguided; a better goal, and one generally achieved in our system, is ‘a reasonable assurance that rules are applied as predictably and evenhandedly as the variousness of human behavior permits.’ Analogical reasoning is the tool that permits a judge to apply a limited set of concrete rules to a novel and unique set of facts.

Recent developments in psychological research demonstrate that the centrality of analogical reasoning in our legal system is grounded in our humanity. The brain is associative, not digital. Analogical thought is a hard-wired evolutionary adaptation that permits humans to quickly and intuitively make correct predictions based upon limited information, often in violation of probability theory. We rely upon analogical reasoning everyday, in life as in law. Salt helped get rid of a cranberry juice stain; I’ll try it on wine. My flooded lawnmower started after a rest; I’ll try that on my car. Human judgment is based on educated guesses drawn from experiences that are more or less similar. The development of the law is the same. Is a steamboat berth more like a hotel room or a railroad sleeper? Is a closed circuit television more like a pair of binoculars or a movie projector? Is a dog trained to sniff luggage more like a search or a plain-view observation? Our courts are charged with answering such questions, and no amount of legislation will ever eliminate the central role occupied in our system by imperfect human judgment.

Mr. Weinreb’s study has important implications for the current attacks on the judiciary. Our system depends upon the integrity of our judges to apply the rules–to choose between competing analogies or values–as conscientiously and correctly as human experience will permit. This is hard, often thankless work. To do it properly, judges should have room to make what are perceived by some to be mistakes without being attacked as being dishonest or stupid. Such attacks are increasingly common. The implication of this book is that such attacks are not just attacks on the individual judge, but are attacks upon our common law system, which vests in our judges the duty, above all, to judge.