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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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