Analogical Reasoning by Cass R. Sunstein :: SSRN

Reasoning by incomplete analogy is the characteristic mode of legal reasoning.  Cass Sunstein is a polymath - and currently adviser to the Biden administration on how to negotiate the shoals of the Administrative Procedure Act.  He explores how the method works. - GWC

Analogical Reasoning by Cass R. Sunstein :: SSRN

By Cass R. Sunstein

Abstract

In law, the process of analogical reasoning appears to work in five simple steps. (1) Some fact pattern A—the “source” case—has certain characteristics; call them x, y, and z. (2) Fact pattern B—the “target” case—has characteristics x, y, and q, or characteristics x, y, z, and q. (3) A is treated a certain way in law. (4) Some principle or rule, announced, created, or discovered in the process of thinking through A, B, and their interrelations, explains why A is treated the way that it is. (5) Because of what it shares in common with A, B should be treated the same way. It is covered by the same principle. It should be clear that the crucial step, and the most difficult, is (4). Often analogical reasoning works through the use of incompletely theorized agreements, making (4) tractable. Some of the disputes about analogical reasoning reflect contests between Burkean and Benthamite conceptions of law.

Keywords: analogical reasoning, rules, case-by-case judgment, Burke, Bentham

JEL Classification: KO, K40

Suggested Citation:

Sunstein, Cass R., Analogical Reasoning (October 7, 2021). Harvard Public Law Working Paper No. 21-39, Available at SSRN: https://ssrn.com/abstract=3938546 or http://dx.doi.org/10.2139/ssrn.3938546