Abstract
This chapter provides guidance in reasoning from precedent and by legal analogy as practiced in a common law context. The goal is to bring jurisprudential theories and descriptive accounts of precedent and legal analogy, philosophical accounts of practical reasoning in terms of argument schemes and critical questions, and computational models of analogical legal reasoning together in a way that should be instructive for law students, but also has practical ramifications for the fields of AI and Law and of Jurisprudence. More specifically, the goal is to identify good patterns of argument associated with precedent and legal analogy and to distill them into argument schema that students, practitioners, and those who develop computational models of legal reasoning can implement. This chapter surveys jurisprudential accounts of the constraints that “following precedent” imposes on a court’s discretion, and formal and descriptive accounts of the kinds of legal arguments one may use to convince a court to follow a precedent, or analogy, or not to do so. Finally, this chapter addresses how to represent these patterns of reasoning in terms of argument schemes that have been offered by AI and Law researchers and briefly addresses application of the schemes in statutory reasoning.
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Notes
- 1.
According to the OED, a “handbook” is “a compendious book or treatise for guidance in any art, occupation, or study.” Given Holmes’ characterization of the law as “prediction, the prediction of the incidence of the public force through the instrumentality of the courts,” the OED’s alternative definition of handbook as “a betting-book,” that is, a book for bookmaking, may also be apropos (Holmes 1897).
- 2.
Scott Brewer speaks frequently of patterns and interpretive schema of analogical and disanalogical argument (Brewer 1996, 962–966, n. 35, 1009f, 1016, 1021). Cass Sunstein speaks of analogies as a kind of patterned reasoning: “Their [i.e., analogies’] meaning lies in their use. They are not simply unanalyzed fact patterns; They are used to help people think through contested cases and to generate low-level principles. In this way they have a constitutive dimension, for the patterns we see are a product not simply of preexisting reality, but of our cognitive structures and our principles as well. The principles and patterns we develop and describe are in turn brought to bear on, and tested through confrontation with, other cases” (Sunstein 1993, 778–779, n. 129).
- 3.
“[A]rgument schemes can be formalised as prima facie reasons, […] applications of schemes resulting in opposite conclusions can be regarded as rebuttals, while negative answers to critical questions about exceptional circumstances correspond to undercutters” (Prakken 2005, 5).
- 4.
217 N.Y. 382, 111 N.E. 1050 (1916).
- 5.
“If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.” 111 N.E. 1050, 1053 (N.Y. 1916).
- 6.
Schauer says, “a careful study of precedent must confront the extent to which sticky and substantially nonnormative social or linguistic characterizations may impede the ability of a formulator of a principle to draw certain intrinsically sound distinctions or to employ certain intrinsically justifiable groupings” (Schauer 1987, 572, n. 4). He notes that the rules of relevance “are contingent upon both time and culture.” He provides the following example: “Holmes used his [the law of butter-]churn story to show that legal similarity is determined by broad and theory-soaked descriptions like “property” rather than by the nature of the objects involved. Would we draw that conclusion today? The existence of distinct principles for some classes of goods (consumer goods and securities, for example) shows that the rules of relevance in Holmes’ time are not necessarily those of today” (Schauer 1987, 578).
- 7.
“Whether the characterizing language is treated as holding or dictum, that language cannot absolutely prevent a subsequent interpreter from recharacterizing the first case. But that interpreter must at least confront an argumentative burden not present without an articulated characterization” (Schauer 1987, 580).
- 8.
On the other hand, as discussed below, at least one of Eisenberg’s examples of courts’ reasoning by analogy seems to involve analogizing, that is, comparing relevant similarities between cases.
- 9.
This DWR is not in Brewer’s example.
- 10.
According to a widely used instructional text on legal reasoning, “An analogy shows that two situations are so parallel that the reasoning that justified the decision in one should do the same in the other. […] Distinguishing is the opposite of analogy: a demonstration that two situations are so fundamentally dissimilar that the same result should not occur in both. Analogizing and distinguishing […] help find and state the rule for which a precedent stands, together with something about how that rule is to be applied. Distinguishing does so by showing what the rule is not and how it is not to be applied. There are three steps in analogizing or distinguishing. First, make sure that the issue in the precedent is the same one you are trying to resolve. Second, identify the precedent’s determinative facts […] facts that the precedential court treated as crucial and on which it really relied. Finally, compare the precedent’s determinative facts to the facts you are trying to resolve” (Neumann 2009, 154).
- 11.
“The law denies a landowner damages for unauthorized entry against an intruder under necessity because the purpose of saving life or property is more important than the purpose of giving inviolate status to property, and it would be morally improper for the landowner to deny entry. Those reasons apply equally well when the issue is whether the landowner can use self-help to eject the intruder. Accordingly, damages and self-help cannot be distinguished for this purpose. It would therefore be inconsistent to adopt a rule that the landowner can use self-help while adhering to the rule that he cannot recover damages” (Eisenberg 1988, 94).
- 12.
“This doctrine of necessity applies with special force to the preservation of human life […] One may sacrifice the personal property of another to save his life or the lives of his fellows.”
- 13.
Eisenberg asserts that “cases are not determined in the common law simply by comparing similarities and differences,” but his conception of comparison seems to be limited to comparing the numbers of similarities and differences. For example, he argues, “Here there are nine similarities between the cases and only one difference, but obviously the difference is decisive, and it would be decisive if ninety more similarities were added” (Eisenberg 1988, 84). That, no doubt, is true, but as various AI and Law models of case-based legal reasoning have demonstrated, one can do more in comparing cases than count similarities and differences. One can compare sets of similarities and differences shared among cases and a problem (Ashley 1990), and that set comparison can be informed by underlying reasons (Aleven 2003) and values (Bench-Capon and Atkinson 2009).
- 14.
An AI and Law model that included an algorithm for determining how and how abstractly to characterize facts in an argument comparing cases was developed in CATO (Aleven 2003).
- 15.
For instance, suppose that in one of the innkeeper cases referred to in Sect. 3, an innkeeper had been held strictly liable even though he had posted notices warning customers to protect their valuables. Such a source case had managed to defeat defeasibility in Brewer’s sense and could be useful in a future argument that the posting of notices is irrelevant.
- 16.
“Lower courts, for example, are expected to respect the decisions of higher courts. But the hierarchical ordering of decision makers implicates considerations different from those involved when a decision maker is constrained by its previous actions as opposed to the orders of its superiors in the hierarchy” (Schauer 1987, 576).
- 17.
As noted, I omit responses that argue that the court lacks authority to distinguish or overrule a precedent.
- 18.
See Brief for Petitioner, Cady v. Dombrowski, 1973 WL 171687 (U.S.), Appellate Brief, No. 72-586. p. 21. In Carroll et al. v. United States, 267 U.S. 132 (1925) pp. 153–154, 158–162, the majority holds that probable cause is needed. We use the risk analogy for purposes of the example and address probable cause below. Although the State’s advocate did not expressly rely on Carroll in his brief, he noted with disapproval that the Court below found that the Carroll “pigeonhole” did not apply, and argued that a search could nevertheless be reasonable when carried out in pursuance of the police officer’s responsibilities for protecting public health and safety.
- 19.
Brief for Petitioner, Cady v. Dombrowski, 1973 WL 171687 (U.S.) (Appellate Brief) No. 72–586. pp. 27-28; Cady v. Dombrowski, 413 US 433, 442–443, 447 (1973).
- 20.
Brief for Respondent, Cady v. Dombrowski, 1973 WL 171688 (U.S.), Appellate Brief, No. 72–586. p. 24. See Carroll et al. v. United States, 267 U.S. 132 (1925) pp. 153–154, 158–162 (suspicion of contraband smuggling).
- 21.
Brief for Resp., Cady v. Dombrowski, 1973WL 171688 (U.S.), Appellate Brief, No. 72–586. p. 24.
- 22.
Hypothetical inspired by California v. Charles B. Carney, 1984 US TRANS LEXIS 209, No. 83-859 (US Sup. Ct.), Argument of Mr. Homann for Respondent p. 27.
- 23.
Grabmair’s work contributes to prior work in AI and Law on theory construction (Bench-Capon and Sartor 2003) and value-based frameworks for computationally modeling legal argumentation (Bench-Capon 2003; Greenwood et al. 2003; Atkinson et al. 2011). The prior work also uses contextual value promotion/demotion by actions, introduces a decision maker’s preferences between actions, and provides corresponding argument schemes. As far as we can tell, however, the prior work relies on an abstract, context-independent hierarchy of values to resolve conflicting arguments. Our approach to comparing cases in terms of values takes into account the specific facts of the situations and the degree of promotion/demotion in those situations. Our approach to contextual balancing expressed by value judgments avoids the need to associate thresholds with values employed in Bench-Capon and Prakken (2010).
- 24.
Eisenberg continues, “Although courts must faithfully employ constitutional and statutory texts in cases to which they are applicable, it might be said that constitutional and statutory law is not comprised solely of those texts, but consists of the rules that would be generated at the present moment by the application to those texts of the governing principles of interpretation (including the standard of doctrinal stability, the standard of systemic consistency, and a standard of congruence with relevant social propositions)” (Eisenberg 1988, 196–197, n. 35).
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Ashley, K.D. (2018). Precedent and Legal Analogy. In: Bongiovanni, G., Postema, G., Rotolo, A., Sartor, G., Valentini, C., Walton, D. (eds) Handbook of Legal Reasoning and Argumentation. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9452-0_23
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