50 Emory L. J. 1197 (2001)
Reason is Too Large: Analogy and Precedent in Law

handle is hein.journals/emlj50 and id is 1207 raw text is: REASON IS TOO LARGE:
ANALOGY AND PRECEDENT IN LAW
Dan Hunter*
This Article argues that cognitive science models of human thinking
explain how analogical reasoning and precedential reasoning operate 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. This is seen in the introductory example: the Supreme Court
decision in Bush v. Gore. Taking this as a starting point, this Article
explains the different features of cognitive science theories of analogy. It
examines the most salient theory-the multiple-constraint model-and
applies it to legal analogical reasoning. Part I concludes by showing the
advances that this theory can provide for our understanding of legal
precedent.
Part II of this Article examines competing theories of precedent and
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 legal 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 unsupportable. Further, these theories lack
the expressive power of the multiple-constraint model.          This 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, by analogy, with precedent.
* Robert F. Irwin IV Term Assistant Professor of Legal Studies, Wharton School, University of
Pennsylvania. I am indebted to Emilios Christodoulidis, Yvonne Cripps, Martin Golding, Bipin Indurkhya,
Matthew Kramer, Stephen MeJohn, Susan Marks, Eric Orts, Charles Senger, Richard Shell, Alan Strudler
and Colin Tapper for suggestions and comments on earlier versions of this Article. The usual disclaimer
applies. Research support was provided by the University of Melbourne Law School and the Wharton
School. I am particularly grateful to Dr. Herchel Smith who endowed my fellowship at Emmanuel College,
Cambridge, where I took the first tentative steps on this Article's journey.

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