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On analogical reasoning

Article Abstract:

Analogical reasoning, which determines that the law should treat similarly cases that share certain characteristics, compares favorably with other forms of legal reasoning such as top-down theories, the search for reflective equilibrium or classification. Distinctive features of analogical reasoning include its demand for principled consistency, focus on particulars, acceptance of incompletely theorized judgments and development of principles of low or intermediate generality. The emphasis on particulars provides an important corrective within the rule-based system of law.

Author: Sunstein, Cass R.
Publisher: Harvard Law Review Association
Publication Name: Harvard Law Review
Subject: Law
ISSN: 0017-811X
Year: 1993
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Exemplary reasoning: semantics, pragmatics, and the rational force of legal argument by analogy

Article Abstract:

Attorneys, judges, and legal scholars often build arguments using the technique of reasoning by analogy, creating legal arguments as rational and strong as scientific analogical arguments. The process of legal reasoning by analogy consists of initial inference or abduction of a rule, confirmation or disconfirmation of the rule inferred, followed by application of the inferred rule to the situation being analyzed. Judges' analogical arguments regarding rule of law values should be interpreted as relying on applicable rules within the overall reasoning process.

Author: Brewer, Scott
Publisher: Harvard Law Review Association
Publication Name: Harvard Law Review
Subject: Law
ISSN: 0017-811X
Year: 1996

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Incompletely theorized agreements

Article Abstract:

Incompletely theorized agreements provide an effective way to come to agreement on particular outcomes in a pluralistic democratic society. Such incompletely theorized agreements occur when there is agreement on results without agreement on abstract principles. For example, people may agree to a policy such as protecting endangered species, while maintaining different reasons for supporting it. The reliance on incompletely theorized agreements is especially suitable for the judiciary, but extends to other aspects of society as well.

Author: Sunstein, Cass R.
Publisher: Harvard Law Review Association
Publication Name: Harvard Law Review
Subject: Law
ISSN: 0017-811X
Year: 1995
Law, Political aspects, Beliefs, opinions and attitudes, Legal philosophy, Pluralism

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Subjects list: Methods, Reasoning, Analogy, United States
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