Reason is Too Large: Analogy and Precedent in Law

Abstract

This Article argues that cognitive science models of human thinking tell us a huge amount about how analogical reasoning operates in law. Judges, attorneys, law professors, and students all reason with legal cases in ways that are clearly explained by cognitive science theories and experiments. The Article begins by explaining the different features of cognitive science theories of analogy. It examines the most salient theory - the multiple-constraint model - applies it to legal analogical reasoning, and shows how it fits with constraint theories in law generally. In Part II, the Article examines the approach of legal theory to analogy. It begins by showing the different uses made of analogy within legal reasoning. Then it reviews the major theories of analogical inference presented by theorists like Alexander, Dworkin, Levi, Golding, Brewer and Sunstein. These theories are characterized by their reliance on a rule-based model of legal analogy. The author argues that this is fundamentally incoherent, and not as expressive or relevant as those provided by the multiple-constraint model. The Article concludes with an explanation of why these legal theories are so limited, and makes a call for greater attention to what is actually happening when lawyers and judges reason with analogy.