THINKING LIKE A LAWYER

Danny Priel*

Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument

(New York: Cambridge University Press, 2005). viii+184pp.
Many legal theorists have argued that analogical reasoning is merely rule-following in
which the general rule is not stated. Lloyd Weinreb’s new book tries to defend the practice
of analogical reasoning “on its own terms.” He does so by giving examples of the way
people use analogical reasoning, both in legal and non-legal contexts, as a means for
deciding how to act in particular circumstances. By itself such evidence does not support
Weinreb’s case, because to justify analogy he must show that analogical reasoning can
somehow lead us to correct answers. Moreover, this evidence does nothing to challenge
the claim that analogical reasoning is simply following suppressed rules.
This Review tries to give Weinreb a helping hand. It uses the data he mentions that people
actually reason by analogy as a starting point for a novel justificatory account of
analogical reasoning based on the notion of reliable results: a process of reasoning is
reliable, and therefore reliance on it justified, if it tends to generate correct results. This
requires explaining what counts as correct results in law, which is a question of political
philosophy. I show that the most fundamental condition for the acceptability of analogical
reasoning is that the standard of legal correctness is not determined by principles derived
by Reason (as is the approach in the civil law tradition) but rather by a standard of
acceptance (more prevalent in the common law tradition). Nonetheless, I argue that there
two other conditions—shared social values and skepticism about the possibility of
discovering the right normative foundations to legal questions—that together have to
obtain in order to justify reliance on analogical reasoning. Since that in a modern society
it is unlikely that these two conditions are not likely to obtain, I conclude that even this
sympathetic reconstruction of Weinreb’s argument ultimately fails.

INTRODUCTION
“You come in here with a skull full of mush, and you leave thinking like a
lawyer.”1 This is how one Harvard Law School professor once described
the three years in that venerable institution. In his new book Lloyd
Weinreb, another Harvard Law School professor, tries to explain this
magical transformation.2 “It is widely believed,” he says right at the

* Assistant Professor, University of Warwick School of Law. The essay was written
while I was Oscar M. Ruebhausen Fellow at Yale Law School. The paper was presented in
the works in progress workshop at Yale, and I thank the participants there for their
comments and for a lively discussion. I also thank Larry Alexander, Chad Flanders, and
Alex Stein for their comments.
1. THE PAPER CHASE (20th Century Fox 1973). Cf. GRANT GILMORE, THE AGES OF
AMERICAN LAW 58 (1977) (“After your three years in Cambridge or wherever, you would
never be the same again; you were stamped, branded, brainwashed for life.”)
2. The Paper Chase may be relevant in more ways than one. Legal Reason often seems
like it was intended for an audience with little or no legal background at all (see e.g., pp.
85 n.*, 101 n.*). This might also explain the two appendices (pp. 163-72), one a

Electronic copy available at: http://ssrn.com/abstract=1096170

 ANALOGICAL REASONING

beginning, “that legal reasoning is somehow special, not just in its subject
matter but in its very form” (pp. 1-2), and what’s “distinctive about legal
reasoning … is its reliance on analogy” (p. 3). And this, he later tells us, is
“what ‘thinking like a lawyer’ means” (p. 146).
Statutes and regulations change, the details of legal cases are often
forgotten shortly after the exam. What remains is a new way of thinking, a
new way of solving problems. But is it? Analogical reasoning is not
something that only lawyers engage in; rather it is a familiar part of
everyday life; and this would suggest, as many have argued, that there is no
such thing as legal reasoning. There is good reasoning and bad reasoning,
and like everyone else lawyers should aspire for the former.3
Weinreb does not deny any of this; he himself discusses non-legal
examples of analogical reasoning (pp. 68-77). Nonetheless, he believes that
there is a difference between these non-legal examples and analogical
reasoning in the law, because while outside the law analogical reasoning is
only an option, in the law it “is not a convenience but a necessity” (p. 96).
This is a significant claim, because if true, it suggests that we cannot hope
to understand how law operates unless we understand how reasoning by
analogy works.
So let us try to do just that. The basic model of analogical reasoning is
easy to state: we use what we know about one case to draw inferences
about some other relevantly similar case. For instance, if we enjoyed the
food in one restaurant, and we know that its chef also runs another
restaurant, we may infer that we’d enjoy the food in the second restaurant.
We rely on the existence of some features about which we know the two
objects are similar (both are restaurants, both have the same chef), to infer
that an additional feature we know about one object (that we enjoyed the
food in the restaurant we visited), is likely to be true of the other too. This
is of course something that lawyers are familiar with. For instance, after the
Supreme Court held that the doctrine of “separate but equal” is inapplicable
in public education,4 a lower court noticed the similarity between public

bibliographical note, the other containing biographical sketches of some of the scholars
mentioned in the book. Both, I should note, contain numerous errors.
3. See, e.g., Larry Alexander, The Banality of Legal Reasoning, 73 NOTRE DAME L.
REV. 517, 517 (1998) (“thinking like a lawyer is just ordinary forms of thinking clearly
and well.”); John Gardner & Timothy Macklem, Reasons, in THE OXFORD HANDBOOK OF
JURISPRUDENCE AND PHILOSOPHY OF LAW 440, 442 (Jules L. Coleman & Scott J. Shapiro
eds., 2001) (“there is no special legal mode of rationality nor any special legal linguistics.
Legal thought and action is subject to the same fundamental doctrines and principles of
rationality ... as the rest of human life.”); Frederick Schauer & Virginia J. Wise, Legal
Positivism as Legal Information, 82 CORNELL L. REV. 1080, 1082 (1997) (“claims about
the distinct character of legal reasoning appear increasingly implausible—‘thinking like a
lawyer’ is a phrase heard less and less these days….”); cf. Joseph Raz, The Inner Logic of
the Law, in ETHICS IN THE PUBLIC DOMAIN 238, 238 (rev. ed. 1994) (assuming it is “false”
that “there are additional rules of logic which apply to legal reasoning only”).
4. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).

Electronic copy available at: http://ssrn.com/abstract=1096170

 ANALOGICAL REASONING

education and public beaches to invalidate laws that enforced segregation

in the latter.5
But there is an obvious problem here. Every two cases are similar in
some respects and different in others.6 It would not be reasonable to infer
from the fact that we enjoyed one restaurant that we would enjoy another
just because they are both on the same street, or because they have a
similar name or serve the same cuisine. Legal examples are equally
susceptible to such a challenge. Take two legal disputes dealing with
events that took place in New York, and assume we know that the plaintiff
lost in one of them. Would it be reasonable to infer from the geographical
similarity between the cases that the plaintiff in the second case would lose
as well? This may seem a ridiculous example, but real-life cases pose
similar problems: Would it be correct to infer from the case that held that
miscegenation laws are unconstitutional,7 that a ban on same-sex marriage
is also unconstitutional?8 Would it be right to infer from the fact that
separation between black and white students is “inherently unequal”9 that
single sex schools are also inherently unequal?10
The problem is evident: to merely point out some similarity between
two cases does not seem by itself to be of any help in answering any of
these questions. We have reason to trust an analogy only if it captures
“relevant” similarities between cases, and if the two cases under
considerations are judged to be “sufficiently” similar. But in order to
identify what count as relevant similarities and when two cases are
sufficiently similar it seems we must rely on something else, presumably a
prior general rule. Thus, in following Brown the Dawson court did not take
Brown to have established only what Brown explicitly said, namely that “in
the field of public education the doctrine of ‘separate but equal’ has no
place,”11 and then concluded that schools and beaches are similar enough.

5. See Dawson v. Mayor & City Council of Baltimore, 220 F.2d 386 (4th Cir. 1955),
aff’d 350 U.S. 877 (1955).
6. The point made informally in the text can be generalized. Scott Brewer provides a
proof that every event is similar to every other in an infinite number of ways. See Scott
Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal
Argument by Analogy, 109 HARV. L. REV. 923, 932 n.19 (1996).
7. See Loving v. Virginia, 388 U.S. 1 (1967).
8. For a survey of the opposing views on the validity of this analogy see Stephen
Clark, Same-Sex but Equal: Reformulating the Miscegenation Analogy, 34 RUTGERS L.J.
107, 109-12 (2002).
9. Brown, 347 U.S. at 495.
10. See Vorchheimer v. Sch. Dist. of Pa., 430 U.S. 703 (1977) (per curiam), aff’g 532
F.2d 880 (3d Cir. 1976), in which an equally divided Supreme Court affirmed a 2-1 Court
of Appeal decision that held that single sex schools do not violate the Fourteenth
Amendment. The Court of Appeal dissent, predictably, analogized the case to Brown. See
Vorchheimer, 532 F.2d at 888-89 (Gibbons J., dissenting).
11. Brown, 347 U.S. at 495. In the following sentence the Court added that “[s]eparate
educational facilities are inherently unequal.” Id. (emphasis added).

2
 ANALOGICAL REASONING

(The similarity between schools and beaches is not something that usually
springs to mind.) Rather, as the court in Dawson said, the Brown decisions
“destroy[ed] the basis” of the segregation regime, and it is for this reason
that “racial segregation in recreational activities can no longer be sustained
as a proper exercise of the police power of the State.”12 Arguably, the same
can be said of any case of analogical reasoning, even when the underlying
rule is not stated explicitly.
But if that is the case, it seems that analogy can never justify a decision.
Standing on its own analogy is “not grounded in logic or ‘reality,’”13 so
any attempt at justifying analogical reasoning turns out to be a case of rule
following in which the general rule is not specified. Edward Levi put this
point succinctly when he described “[t]he basic pattern of reasoning by
example” as
a three-step process described by the doctrine of precedent in which a proposition
descriptive of the first case is made into a rule of law and then applied to a next
similar situation. The steps are these: similarity is seen between cases; next the rule
of law inherent in the first case is announced; then the rule of law is made
applicable to the second case.14
Though Levi was defending analogical reasoning here, this is not the
kind of defense Weinreb is after. This defense and others like it come to
praise analogy but end up burying it, explaining it away instead of
explaining it. In contrast, Weinreb wants to defend the validity of
analogical arguments “on their own terms” (pp. 39, 108). In the course of

12. Dawson, 200 F.2d at 387.

13. Gary Peller, The Metaphysics of American Law, 73 CAL. L. REV. 1151, 1232
(1985).
14. Edward H. Levi, An Introduction to Legal Reasoning, 15 U. CHI. L. REV. 501, 501-
02 (1948). Similar ideas have been expressed by many others. See, e.g., NEIL
MACCORMICK, LEGAL REASONING AND LEGAL THEORY 186 (1978) (“Analogies only
make sense if there are reasons of principle underlying them”); FREDERICK SCHAUER,
PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-
MAKING IN LAW AND IN LIFE 183, 187 (1991); Larry Alexander, Bad Beginnings, 145 U.
PA. L. REV. 57, 79-80 (1996); Ronald Dworkin, Reply, 29 ARIZ. ST. L.J. 431, 455 (1997);
Cass R. Sunstein, Analogical Reasoning, 106 HARV. L. REV. 741, 747 (1992); Peter
Westen, On “Confusing Ideas”: Reply, 91 YALE L.J. 1153, 1162-63 (1982) (adopting this
view but oddly criticizing Levi for “assum[ing] that in reasoning by analogy a person first
identifies legally relevant similarities and then formulates a legal rule to explain the
similarities.”); cf. O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 465-66
(1897). Psychologists seem to agree. See ROBERT J. STERNBERG, INTELLIGENCE,
INFORMATION PROCESSING, AND ANALOGICAL REASONING: THE COMPONENTIAL
ANALYSIS OF HUMAN ABILITIES 106-30, 134-36, 309-11 (1977) (describing several
theoretical models of analogical reasoning, all involving rules); see also Robert J.
Sternberg, Component Processes in Analogical Reasoning, 84 PSYCHOL. REV. 353, 354-
55 (1977) (summarizing those positions). Even Brewer, who gives a more elaborate
account of analogical reasoning, which he claims is not reducible to rule-following, admits
that “[r]ules play a vital role in [analogical] argument.” Brewer, supra note 6, at 975.
Whether Brewer succeeds in establishing analogical reasoning as a distinct mode of
justified inference is a question I cannot undertake here.

3
 ANALOGICAL REASONING

this Review we shall see whether he succeeds in that,15 but the more
interesting question is why it is so important for him to try and show that
analogical reasoning is an independent mode of reasoning and why he
thinks it a “necessity” for lawyers. What I aim to show is that below the
surface of Weinreb’s seemingly tame and simple discussion, lie much more
controversial views about the authority of law and the place of law in
society.

I. JUSTIFICATION AND PSYCHOLOGY

Before we get to these issues we must look first at some of the details of
Weinreb’s arguments. He blames all those who tried to explain analogy as
a kind of implicit rule following for over-complicating what can be learned
by simply examining our own practices carefully. To show this he
considers the following example: we can reason analogically from our
knowledge that salt could be used for removing stains of red wine to the
conclusion that it might be helpful for removing stains of cranberry juice
(p. 68). He then observes that in suggesting using salt in the latter case
a theory [i.e., a general rule] is beside the point. The observed similarity between
past experience and present problem … is itself enough to prompt the connection
between them, without mediation by a general rule. If [those drawing the analogy]
were asked to frame a rule from which the solution followed as a deductive
inference, very likely they would not know how to proceed. [P. 71.]
He concedes that it is possible to frame the analogy within some rule like
“‘salt removes red stains,’ … [b]ut it would make no difference. For [those
trying to remove the stain] are interested for the moment in solving a
particular problem, and speculation beyond that is not to the purpose” (p.
72).16
What this example shows is that there is a significant difference
between what Weinreb and his opponents are trying to establish in their
explanation of analogical reasoning: when several commentators have
argued analogical reasoning can be justified only if it is subsumed under a
general rule, they did not talk about reasoning, i.e. a certain psychological
process of generating new beliefs from previous ones. Instead, they talked
about the evaluation of different methods of inference from premises to
conclusion, which may be valid or invalid as a matter of logic.17 Those

15. For a review of Weinreb’s book that focuses more closely on its arguments and
examples, and concludes that it does not succeed, see Richard A. Posner, Reasoning by
Analogy, 91 CORNELL L. REV. 761 (2006) (book review).
16. When he later considers legal analogy Weinreb makes essentially the same point:
in his view, once the decision had been laid down we could frame a “generalized
statement of the decision,” but it was not “available beforehand”,” and therefore was not a
“predicate on which the decision rest[ed]” (p. 115). So again, the analogy comes first, and
only then a rule can be framed.
17. For the distinction see Gilbert Harman, Rationality, in REASONING, MEANING, AND
MIND 9, 18 (1999).

4
 ANALOGICAL REASONING

critics show, convincingly, that there is no valid, or even statistically

reliable, method of inference from premises to conclusion that is based
merely on the notion of similarity. In contrast, when Weinreb talks about
reasoning by analogy it seems that he does not offer any justification of
analogy; rather, he simply relies on psychological introspection18 and some
psychological research (pp. 124-31) to report that when people reason by
analogy they do not (explicitly) frame a rule that they follow. What he tries
to show is that the similarity between events, objects, or cases often just
springs to mind prior to any clear rule that we seem to follow.
Does this undermine the claim of the analogy critics? At first it looks
that it does not, and for at least two independent reasons. First, if we are
interested in the question of the logical justification of analogical
reasoning, which is the question that Weinreb’s adversaries were
concerned with, the fact that people happen to reason by analogy is neither
here nor there. How people think is not always a good guide to how people
should think. We know this not just from anecdotal, personal experience,
but also from vast experimental evidence that documents prevalent and
often persistent errors of reasoning that people commonly make.19 Second,
there is a sense in which this objection is unsuccessful even on its own
terms. We just “see” the similarity between two cases not because their
similarity is in some sense inherent in them. Rather we see the similarity
because of our conceptual scheme: our concepts are mental rules, and the
way we individuate our concepts determines the way we classify things in
the world, and thus also our judgments of similarity. In fact, it is the
existence of such mental rules that enables us to have thought,20 and in the
same way that we don’t “see” the rules that govern our thought processes,
we need not acknowledge the rules that underlie our analogies in order to
know that they are there. Since two things are never just “similar,” but are
similar in virtue of some features that they share, some must be there, even
if they are not always easy to specify.
So if this had been all that Weinreb’s arguments amounted to, we could
have dismissed them quickly. His defense of analogical reasoning “on its
own terms” would have turned out to be no defense at all, because it
confuses the logic of inference with the psychology of reasoning. If it is the

18. Werinreb says that his account of analogy is supported by “patterns of ordinary
thought that we all recognize” (p. 132). A similar defense of analogy based on
introspection is found in F.M. Kamm, Theory and Analogy in Law, 29 ARIZ. ST. L.J. 405,
413-14 (1997).
19. The literature on this topic is huge, but one article, written by one of the founders
of the field, is particularly relevant here. See Amos Tversky, Features of Similarity, 84
PSYCHOL. REV. 327 (1977). Tversky presents empirical data showing that judgments of
similarity are based on the salience and availability of certain features, that they are not
symmetrical, and that two items may be judged more or less similar to each other by
changing their surroundings.
20. See Philip Pettit, The Reality of Rule-Following, 99 MIND 1, 4-5 (1990).

5
 ANALOGICAL REASONING

justification of analogical reasoning that we are interested in, then a rule

following account of analogy seems not just plausible, but the only
possible one.
But perhaps there is something deeper here. Perhaps we should
understand Weinreb’s claims as an attempt to shift the grounds of
justification of legal argument from logic to psychology. The idea is
familiar from the history of twentieth century philosophy. After a period in
which epistemologists tried to give an account of knowledge in terms of
logical conditions that have to obtain for one to be justified in inferring one
proposition from another, the “naturalistic turn” in epistemology called for
replacing logical justification with psychology. The basic idea was that our
assessment of epistemically virtuous modes of reasoning should not be
determined by the standards of valid logical inference, but by the more
modest cognitive capacities of humans.21 Weinreb may have been trying
(perhaps without being fully aware of it) to shift the ground of defense of
analogical reasoning along the same lines.
Admittedly, ascribing this move to Weinreb is not straightforward. He
never makes it plain how the psychological findings he reports are
supposed to undermine the logical defense of analogical reasoning found in
the writings he criticizes. Nevertheless, there are some hints that this is
what he is interested in. To begin with, Weinreb quotes Quine in support of
his views at one point (pp. 126-27 n.*), and Quine is the modern instigator
of the “naturalized” approach to epistemology, even though perhaps of a
more radical cast than the one Weinreb (under this interpretation)
supports.22
Second, Weinreb seeks to defend analogical reasoning by showing that
it is simply a good method of reasoning, that is to say, that it tends to
produce correct answers. Indeed, Weinreb insists that analogical reasoning
is “reliable” (p. 13), and that we need not look for more than that it in
justifying analogy (pp. 151-52). This suggests that we should understand
Weinreb’s project to be in line with one of the more popular strands in
epistemological naturalism, namely “reliabilism.”23 Reliabilism is the

21. For an excellent discussion of the historical dialectic see Philip Kitcher, The
Naturalists Return, 101 PHIL. REV. 53, 56-59, 74-80, 83-100 (1992).
22. See W.V. Quine, Epistemology Naturalized, in ONTOLOGICAL RELATIVITY AND
OTHER ESSAYS 69 (1969). For the difference see the distinction between normative and
non-normative naturalized epistemology as discussed in Jaegwon Kim, What is
“Naturalized Epistemology?,” 2 PHIL. PERSP. 381, 385-91, 394-99; see also Brian Leiter,
Naturalism and Naturalized Jurisprudence, in ANALYZING LAW: NEW ESSAYS IN LEGAL
THEORY 79, 84, 90-93 (Brian Bix ed., 1998).
23. This approach is mainly associated with the work of Alvin Goldman. See ALVIN I.
GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD 29 (1999); see generally ALVIN I
GOLDMAN, EPISTEMOLOGY AND COGNITION 42-121 (1986); Alvin I. Goldman, What is
Justified Belief?, in JUSTIFICATION AND KNOWLEDGE: NEW STUDIES IN EPISTEMOLOGY 1
(George S. Pappas ed., 1979). I am aware of the fact that the evidence in support of this

6
 ANALOGICAL REASONING

thesis that we can assess methods of reasoning according to their reliability

in generating true beliefs. Understood in this way Weinreb’s arguments
should not be seen as a rejection of the claim that there are no mental rules
that would be part of a complete explanation of analogical reasoning.
The problem is that merely citing psychological literature showing the
prevalence of analogical reasoning in general, or analyzing legal cases in
which it has been employed is not enough to establish even the more
modest claim that analogical reasoning is a reliable method of reasoning.
Interpreted in this way Weinreb’s claim, that analogical reasoning is
particularly important—even a “necessity”—for lawyers, becomes the
claim that analogical reasoning is particularly reliable, useful or
appropriate method for finding the right answer to legal questions. Is there
any reason to think that?

II. THE JUSTIFICATION OF ANALOGY

Our starting point is that people use analogical reasoning to justify certain
actions they take or decisions they make. They do so in life and they do so
in law. The question we are trying to answer is whether there are any
circumstances under which we would consider such reliance on analogical
reasoning as sufficient justification for the conclusions we draw from it.
The question whether analogical reasoning could fulfill that role requires
answering two questions: first, what makes a legal decision “true,” that is,
what renders a legal decision correct; and second what are the conditions
under which we could have reason to believe that reliance on analogical
reasoning will lead us to correct decisions with significant degree of
reliability. Answering these questions is the task of this Part.
When talking about theoretical reasoning we consider reliable those
methods of reasoning that tend to generate true beliefs, and in practical
reasoning those methods of reasoning that tend to lead us to actions that
satisfy our practical interests or desires.24 But what would count as a true
proposition of law, and why should we think that analogical reasoning may
be better than other modes of reasoning in discovering those propositions?
Consider Adams v. New Jersey Steamboat Co.,25 one of the cases
Weinreb discusses throughout the book (pp. 41-45, 111-12, 114-15, 137-
38). In this case the court had to determine whether a steamboat operator is
liable to its passengers as an insurer for theft from their cabins. One
established rule held that hotels are liable as insurers to their lodgers for

interpretation might seem weak, but as the discussion in the text below will try to show,
this is the only way of making sense of Weinreb’s arguments.
24. Of course, in the case of practical reasoning it depends on there being some truth
that our method of reasoning is supposed to discover. As the discussion below shows this
will turn out to be crucial for the justification of analogical reasoning. See text
accompanying notes 29-Error! Bookmark not defined., infra.
25. 45 N.E. 369 (N.Y. 1896).

7
 ANALOGICAL REASONING

theft; another rule held that railroad companies are not strictly liable for
theft to their passengers in the sleeping coaches. There was no rule with
regard to steamboats. Which of these factual situations was the legally
correct one? The court held that the boat was, “for all practical purposes, a
floating inn,”26 and hence ruled for the plaintiff. But on what basis can we
hold that the “floating inn,” analogy is more apt than a “floating train?”
Weinreb rejects any suggestion that there was any rule that governed the
case (p. 112), and of course he denies that it was any comprehensive view
(say, morality or efficiency) that dictated the answer the court reached (pp.
152-53). But this does not imply he thinks there is no way of assessing the
answer given by the court. Weinreb says it is enough that “[t]he court’s
argument in Adams is … comprehensible and persuasive (even if it is not
demonstrably true), because the analogy, in light of what we know about
the law, makes it so” (p. 114). This seems hopelessly obscure, or
hopelessly circular (or, if that’s possible, both). We cannot say that
analogical reasoning is required by a certain conception of law without
having some independent account of that conception of law, and we cannot
say that it is analogical reasoning that “makes” an inference persuasive
when the question under discussion is whether (and which) analogical
inference is persuasive.
So we must try a different route.27 We can distinguish among three
different possible justifications for relying on analogical reasoning: (a)
analogical reasoning is a method that regardless of the law is all things
considered better for discovering the objective truth regarding the
resolution of the case (call this “epistemic superiority”); (b) in all or most
cases analogical reasoning will yield the same answer as other methods of
reasoning, except that analogical reasoning is the appropriate method for
reaching those decisions in law (“weak autonomy of law”); and (c) the
legal right answer will often differ from the right answer suggested by
other disciplines, and as lawyers we should be primarily interested in the
legal right answer as revealed by analogical reasoning (“strong autonomy
of law”).
There is no reason to believe in the epistemic superiority of analogical
reasoning, and as the quote above indicates, Weinreb does not believe
analogical reasoning generates “demonstrable” truths, so we can set aside
this possibility. I don’t think that weak autonomy of law is an interesting

26. Id. at 369.

27. At various points Weinreb briefly suggests two justifications for analogical
reasoning that are different from the one I will focus on in the text below. He argues that
we need analogical reasoning because rules by themselves are not self-executing (p. 96,
151), and because analogy is sensitive to particular cases in a way that general rules
cannot be (pp. 118, 159). Both claims are unconvincing, because as we have seen
analogies are no more self-executing than rules, and rules (at least in the sense used in
legal contexts) are often sensitive to particular cases. That’s why the route taken in the text
strikes me as more promising.

8
 ANALOGICAL REASONING

possibility either. Although some of Weinreb’s comments suggest that this

is the only role he has for analogy (e.g., p. 118), this cannot be what he
tries to defend, for in this sense analogical reasoning is nothing more than a
rhetorical device for giving one’s conclusions a “lawyerly” appearance by
presenting them as if derived from past cases.28 But in this sense analogical
reasoning has no intrinsic merit, and it does no work in justifying any
decision. If that were Weinreb’s argument I doubt he would convince
anyone that relying on analogical reasoning is a legal necessity.
The third possibility is that in a substantial number of times a judge who
reasons by analogy from past cases would reach different conclusions from
those reached by trying to resolve the matter by relying on some other
principles (say, by trying to find the most efficient result). I believe this is
Weinreb’s view, and it puts him squarely in the normative domain, for now
it is not enough to say that analogical reasoning yields different answers
from other standards, now Weinreb has to show that this method of
reasoning produces answers that are in some sense superior to other
answers, and the question is what that sense could be. One possibility
would be that there are domains of human affairs which are governed by
law, and as such are not governed by any other discipline. But this answer
is not likely to convince anyone today. This view might have been
attainable when there were few laws, which established what were thought
to be the rules of right conduct in certain areas of life. Accidents or crimes
might have been thought at one point as those aspects of life that belong
exclusively in the domain of law. But once laws expanded to cover many
more facets of human life it became increasingly apparent that law does not
provide a unique set of substantive answers to particular domains, but is
simply a means for regulating activities according to other, non-legal,
considerations. Once this point has been realized in areas in which law has
been a new arrival, like antitrust or securities regulation, it did not take
long for people to realize that the same standards used for evaluating those
new legal branches could be used for evaluating traditional domains like
criminal law or tort law. Consequently, even if the theorist could convince
us that a certain answer is dictated by law as it currently is, we would
immediately ask what justifies that law and why we should follow it. More
generally although essentially making the same point, we would ask why
we should adopt a conception of law whose success is not measured by
some other standards, one in which analogical reasoning from past cases is
not considered an appropriate method for resolving disputes.
This means that if we wish to support analogical reasoning as the
appropriate method for maintaining the strong autonomy of law without
circularity, we must find some external standard, which is both uniquely
appropriate for assessing the correctness of legal decisions and which

28. This is, however, how Posner understands analogy and what he takes Weinreb’s
position to be. See Posner, supra note 15, at 765; cf. Peller, supra note 13, at 1155.

9
 ANALOGICAL REASONING

would also vindicate our use of analogical reasoning. I want to suggest the
one candidate, which although is hardly discussed by Weinreb, is the one
which I believe makes best sense of his argument. The key to it is found in
a brief, and ironically somewhat inaccurate, statement found in the book.
At one point Weinreb says that even though in different countries the
conclusions of analogical reasoning may be different, “the need to reason
analogically is common to all legal systems that subscribe to the rule of
law” (p. 135). I want to suggest that here we can find what could take us
out of the circle.
To understand why, we need to look at one fundamental difference
between the common law and civil law traditions. Since the early modern
age civil law systems have understood their laws as codifying the demands
of reason. As such the justification for a legal decision is intimately bound
by its relation to its truth as measured by certain standards of reason: a
legal decision is measured as correct by the degree to which it comports
with the demands of reason. As some civil law theorists believed, reason
could give us determinate answers to specific legal disputes, answers that
could be deduced from general, possibly self-evident, principles.29 In sharp
contrast, the authority of the common law traditionally derives not from its
being the articulation of the demands of reason, but by the less demanding
standard of its laws being accepted as a repository of the values shared by
society.30 This explains the very different place natural law played in the
two traditions. In the civil law tradition, invocations of natural law as the
ultimate justification of the law are common.31 In the common law
tradition natural law meant something quite different and from the period
of Blackstone in the late eighteenth century, had a much less significant
hold.32

29. For the effect of the notions of “Law of Reason” and natural law in the
development of the modern civilian tradition see FRANZ WIEACKER, HISTORY OF PRIVATE
LAW IN EUROPE WITH PARTICULAR REFERENCE TO GERMANY 218 (Tony Weir trans.,
1995) (2d ed. 1967); ALAN WATSON, THE MAKING OF THE CIVIL LAW 90-94 (1981); M.A.
Hoeflich, Law & Geometry: Legal Science from Leibniz to Langdell, 30 AM. J. LEGAL
HIST. 95, 104-05, 107 (1986).
30. Referring to the law reports Blackstone said that they “receive their binding power,
and the force of laws, by long and immemorial usage, and by their universal reception
throughout the kingdom.” 1 WILLIAM BLACKSTONE, COMMENTARIES *64; see also 1 id. at
*472 (“common law being nothing else but custom, arising from the universal agreement
of the whole community”).
31. See WATSON, supra note 29, at 84 (“So far as post-Justinianian civil law is
concerned, natural law is endemic”); WIEACKER, supra note 29, at 199-221.
32. Blackstone’s work does contain references to natural law, but his references to
natural law have been described as “lip-service.” Frederick Pollock, A Plea for Historical
Interpretation, 39 LAW Q. REV. 163, 165 (1923) (book review). Blackstone did not rely on
natural law doctrines to show “that common law could be treated as a series of deductions
from principles of reason or nature,” and “he rarely utilized his natural law precepts in
order directly to assess or criticize the substance of the common law.” DAVID LIEBERMAN,
THE PROVINCE OF LEGISLATION DETERMINED: LEGAL THEORY IN EIGHTEENTH CENTURY

10
 ANALOGICAL REASONING

I should warn that the contrast between the two traditions as presented
here is far too crude for a full account of the differences in reasoning in
common law and civil law legal systems. The histories and contemporary
realities of the two traditions are far more complex and nuanced and
contain many instances of mutual influence that the previous paragraph
disregards. I cannot paint a more detailed picture here,33 but I believe there
is still value in the broad brush image offered here, because it does grasp
something that is fundamentally true about these two traditions, and which
remains true even today.34 For example, this fundamental difference
explains the central place of codes in the civil law tradition in contrast with
the suspicion, even hostility, towards legislation and codification in the
classical common law tradition;35 it can be seen also in the relatively short

BRITAIN 45, 46 (1989). See also Albert W. Alschuler, Rediscovering Blackstone, 145 U.
PA. L. REV. 1, 20-27 (1996) (showing that Blackstone, who founded his theory on some
conception of natural law, nevertheless believed that on most legal questions natural law
was silent); LIEBERMAN, supra, at 45-49. In the period after Blackstone it was Bentham
and then Austin whose theories of law have been most influential; and they both were
staunchly positivistic.
33. For an account of the relationship between “custom” and “reason” in European law
from the Middle Ages to the eighteenth century (i.e., before the period I focus on in the
text) see James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and
Reason, 58 U. CHI. L. REV. 1321, 1329-61 (1991). From the eighteenth century onward we
can see the divergence of the civil law towards Cartesian models of logic, see id. at 1362-
63, and the common law model, in which it is the “felt necessities of the time” and
“experience” that explain the law. See O.W. HOLMES, THE COMMON LAW 1 (1881).
34. For a strong statement of the view that these differences still exist, even when at
the surface level legal rules in the two traditions are nowadays often similar see Pierre
Legrand, European Legal Systems Are Not Converging, 45 INT’L & COMP. L.Q. 52 (1996).
Three warnings about American law are due here: first, late nineteenth century
formalism is often associated with the view that the correct legal principles are eternal, are
discovered by pure reason, and from which all legal decisions are arrived at by deduction.
As such it would seem that American law at that period would be closer to the civil law
model. But the prevalent account of that period is inaccurate. See notes 51-53, infra, and
their accompanying text. Second, although by no means abandoning its strong common
law roots American law has in many respects (codification, theorizing) moved during the
twentieth century towards the continental model much more than other common law
jurisdictions. For the effects of these developments on Weinreb’s arguments see Part III,
infra. Third, the existence of a written constitution which declares the foundational values
may be another reason to think American law is closer to the civil law model. Nonetheless
there has been considerable resistance to the view that those values represent a particular
conception of correct morality. See, e.g., Lochner v. New York, 198 U.S. 45, 75-76 (1905)
(Holmes J., dissenting). Moreover, it has been argued as a result that American courts,
even on constitutional matters, are always attentive to the values of the community and
use the vague and ambiguous words of the Constitution exactly for following changed
values of society. See, e.g., Jack M. Balkin, What Brown Teaches Us about Constitutional
Theory, 90 VA. L. REV. 1537, 1546-51 (2004); cf. WILLIAM N. ESKRIDGE, DYNAMIC
STATUTORY INTERPRETATION 70-80 (1994).
35. On the opposition to codification in England see MAURICE EUGEN LANG,
CODIFICATION IN THE BRITISH EMPIRE AND AMERICA 46-53 (1924). One nineteenth
century scholar even spoke about the “Codiphobia” of English lawyers. See ANDREW

11
 ANALOGICAL REASONING

and dissent-free style of judicial decisions found in civil law countries

(especially in France), as opposed to the much more argumentative style of
decisions of the common law tradition; it is also exemplified in the
prominence of a communal standard like “reasonableness” in common law
systems in contrast with the centrality of the notion of “Right” in civil law
systems,36 and even in the “pragmatism” of the common law as opposed to
the “conceptualism” of the civil law.37 It explains the high esteem for
scholars and commentators of codes in the civil tradition as opposed to the
primary role given to adjudication in explaining and developing the law.38
What lies underneath all these differences are two fundamentally
different theories of political obligation. What traditionally justifies the
decision in a civil law jurisdiction is its conformity with some non-societal
standard of correctness; what traditionally justified a judicial decision in a
common law jurisdiction is its acceptance. As the basis of obligation
acceptance has an undeniable appeal: If someone voluntarily undertakes an
obligation to do something, why should anyone else intervene? If a person
agrees to do something, who are we to tell her that she is wrong to
undertake such an obligation? Despite some well known challenges to this
idea (the possibility of binding one’s future self, false consciousness,
cognitive biases etc.), this approach seems particularly appealing if we are
skeptical of our abilities to discover the true principles by which we should
govern our lives, or if we do not believe that such general principles can
yield answers to particular questions. But much of the appeal of this
justification of political obligation is lost if we think that justification
ultimately derives from the truth of certain principles that humans have the
capacity to discover. In that case the fact that two people believe, for
example, that they can enter into a master and slave contractual

AMOS, RUINS OF TIME EXEMPLIFIED IN SIR MATTHEW HALE’S HISTORY OF THE PLEAS OF
THE CROWN xvii (1856). For a similar reaction to codification by a likeminded
contemporary writer see Andrew Burrows, Legislative Reform of Remedies for Breach of
Contract, 1 EDINBURGH L. REV. 155, 156, 179 (1997). See generally JEREMY WALDRON,
THE DIGNITY OF LEGISLATION 7-23 (1999).
36. The distinction is elaborated in George P. Fletcher, The Right and the Reasonable,
98 HARV. L. REV. 949 (1985). Fletcher does not make the connection between these two
concepts and a difference in the structure of authority in these legal traditions in the same
way that I do, but some of what he says is relevant. See id. at 981-82.
37. See P.S. ATIYAH, PRAGMATISM AND THEORY IN ENGLISH LAW 3-13 (1987); F.H.
LAWSON, A COMMON LAWYER LOOKS AT THE CIVIL LAW 66-69 (1953); cf. Legrand,
supra note 34, at 63 (“These two legal traditions reflect two modes of experiencing the
world.”), 64-67.
38. Strictly speaking in civil law systems judicial opinion is not a source of law. In
contrast in the common law tradition, “[i]t is emphatically the province and the duty of the
judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,
177 (1803). Consequently cases in the common law are much more central. Cf. William
Ewald, Comparative Jurisprudence (I): What was it Like to Try a Rat?, 143 U. PA. L.
REV. 1889, 1969-70 (1995).

12
 ANALOGICAL REASONING

relationship may not exhaust the question whether they can (or should) do
so, if we believe that in doing this they contradict some principle
discovered by reason.
Coming back to our topic, the difference between reason and acceptance
and the different ideas of political obligation that they embody explain the
role of analogy in legal reasoning: analogical reasoning from past cases is a
prevalent method of analysis in common law systems, but it is much less
important in civil law systems. In contrast, analogy from statute when the
law is deemed to contain a gap is a “widely deployed” practice by civil law
courts, but “far less influential in the UK and the USA.”39 If we believe
that a code contains the right answers to particular legal questions, it makes
sense to rely on it and to try to imitate it when faced with a problem not
found in it. In contrast, if one believes that the common law embodies a set
of accepted norms of behavior, it makes sense to try to work out solutions
to novel legal problems by extending principles articulated in past judicial
cases.
But what does all this have to do with Weinreb’s hope to justify analogy
“on its own terms”? Though Weinreb never deals with any of these issues
conspicuously, various passages hint that he has something like these ideas
in mind, and that he is committed to the political theory that underlies the
classical common law tradition. He cautions against looking for
“transcendental verities” (p. 162) and adds that “[t]he goal [of law] is not
certainty but a reasonable assurance that rules are applied as predictably
and evenhandedly as the variousness of human behavior permits” (p. 161).
He comes closest to acknowledging his commitment to the common law
model of justification when he says that “it is the law itself (as well, of
course, as ordinary common sense) on which a decision properly rests and
on the basis of which, carefully articulated, it commands assent” (p. 92,
emphases added).
If these passages represent the view articulated above we can now see
what it is that Weinreb is trying to defend: he defends analogical reasoning
because—and to the extent that—it is accepted. If any two cases are in
some sense similar and in other senses different we cannot talk about
analogy being more correct than others, but rather on it being more
“reasonable” than others. And reasonableness is traditionally assessed by a
communal standard like that of the reasonable person. I believe this is why
it is so important for Weinreb to insist that despite the fact that analogical

39. Robert S. Summers & Michele Taruffo, Interpretation and Comparative Analysis,
in INTERPRETING STATUTES: A COMPARATIVE STUDY 461, 471 (D. Neil MacCormick &
Robert S. Summers eds., 1991); see also Katja Langenbucher, Argument by Analogy in
European Law, 57 CAMBRIDGE L.J. 481, 482-90, 497-99 (1998); cf. Grant Gilmore, Legal
Realism: Its Cause and Cure, 70 YALE L.J. 1037, 1043 (1961).

13
 ANALOGICAL REASONING

reasoning is the “hallmark” (p. 3) of legal reasoning, it is prevalent in

everyday life.40
Weinreb also drops some clues for his support for the other limb of the
argument from acceptance: even though analogical reasoning is
“undemonstrable” it is “valid,” and “[o]rdinarily … we are able to reach a
fair degree of agreement” (p. 12) on which analogies are good and which
are bad. Those who deny the validity of analogical reasoning do so from a
mistaken “conviction that it is not enough for law to be reasonable, as an
accommodation of the interests of individuals living together in
community, and that law must be independent of the contingencies of
human experience and anchored wholly and absolutely in reason” (pp 13-
14, emphases added).
So Weinreb’s defense of analogical reasoning, which initially seemed
quite odd and circular, appears after this reconstruction in much better
light: analogical reasoning fits the traditional common law model not
simply because it comes naturally to the casuistically minded common
lawyer, not even because it enables the judge to relate the decision to
existing legal materials. Rather, analogical reasoning can yield what we
will consider the legally correct answer, the outcome that is uniquely
appropriate for the law. In an environment in which political obligation is
ultimately based on acceptance and in which the law (as voiced by the
judges) is believed to be legitimate when it is based on accepted values, we
can be reasonably certain that from the infinite number of possible
analogies from one case to another, the judge will base her decision on the
right one.
In this way we seem to have found a way out of the circle that bedeviled
Weinreb’s argument: strong autonomy of law gives us answers to
particular legal questions that may be different from the ones that the moral
philosopher or the economist may have given us, but the law is no worse
for that, if the answers it gives us are accepted. And we know that they are
accepted because the judge relied on analogical reasoning, the method that
“works” only when the judge follows the accepted values of society. In
fact, it is exactly the reliance on analogy and not on some more
scientifically respectable method of reasoning that guarantees the decision
will “command[] assent.”
There is another problem with analogical reasoning solved by
understanding the justification of analogical reasoning in this way: it has
been argued that the strength of analogy depends on the fact that the
original decision which we analogize was correct. If we analogize from a
mistaken decision, then even when we identify the correct analogue to our
case, the use of analogy will carry over a mistaken judgment to the new

40. “Far from being special to the law, analogical reasoning is used by all of us
constantly, to conduct the most ordinary affairs. Our lives depend on it” (pp. 73-74).

14
 ANALOGICAL REASONING

case.41 Some may believe that there is some value in applying the same
reasons to relevantly similar cases even if the original decision was
mistaken, but there must come a point that this value will be offset by the
spreading of the error in the original judgment. But if our model of
authority is one of acceptance, then this problem is solved as well: as long
as we analogize from cases that are well accepted we have as much
guarantee as we need, indeed arguably as much guarantee as possible, that
the original decision upon which we rely is correct. The very fact that the
decision has not been challenged is a guarantee to its correctness.
If we now look back at Adams we see that the court did not just state
that the steamboat was “for all practical purposes, a floating inn.”42 In fact,
it looks like the analogy was used by the court as its conclusion, not its
reason for the decision. What really drives the decision are two different
arguments: that sleeping coaches are not common carriers whereas
steamboats are, and more importantly that passengers using open berths in
sleeping coaches cannot and do not expect the same degree of security as
lodgers in an inn. The court surveys the reasons for imposing insurer
liability on the innkeeper, and concludes that the same reasons apply also
in the case of the steamboat, whereas, either as a matter of contractual
interpretation or as a matter of policy, they do not apply in the case of the
train.43 We find the analogy compelling only after we accept the
considerations upon which the similarity has been drawn, and not the other
way around. Earlier, this might have seemed like something that would
undermine the entire argument, for it suggests that it is not analogy that
explains the decision. But now this is no longer an important criticism (cf.
pp. 96-97). As I said earlier, the point of the argument is not to show that
there was nothing outside the analogy that justifies the decision, for there
must be some such thing. The point was that the ultimate justification of
those mental rules that drove the analogy are not a general theory of justice
or efficiency, and are not explained by derivation from the demands of self-
evident reason. Rather, given the values accepted by our community, we
find the analogy compelling because it relies on values and classifications
that make sense to us as members of the community in which the judgment
was made. To be sure, the right answers analogical reasoning will not be
universal. The reasons might not have been compelling and the analogy
might have struck us as the wrong one, if we had had different values. It is,
after all, not that hard to imagine a court using a different analogy and
deciding Adams the other way. And if we believe both analogies are more

41. See Alexander, supra note 3, at 526-28; Alexander, supra note 14, at 73-75.
42. Adams, 45 N.E. at 369.
43. Id. at 370 (“it is quite obvious that the passenger has no right to expect, and in fact
does not expect, the same degree of security from thieves while in an open berth in a car
on a railroad as in a stateroom of a steamboat, securely locked, and otherwise guarded
from intrusion.”).

15
 ANALOGICAL REASONING

or less equally compelling, this would mean that both outcomes would be
accepted by the community. This is consistent with the possibility that on
certain legal questions more than one outcome would be possible.
At this point it might still be argued that if this is what analogical
reasoning is supposed to do, it is unnecessary. The well-situated judge
could simply rely on some general moral principles accepted in her society
and deduce the communally accepted right answer to particular cases from
them. This may be true (and this is, of course, also a familiar method of
judicial justification of legal decisions in common law jurisdictions), but it
misses two points. First, this argument aimed to show the circumstances
under which reliance on analogy may be justified. It does not mean no
other method of reasoning would ever be justified. Second, such general
principles are often much less clearly defined in general society than in the
writings of political philosophers. In this respect, following particular
examples helps the judge have a better way of making sure that she
understands the values accepted by society without having to engage in
deep philosophical (or sociological) consideration of the values accepted in
her society.
So we seem to have found the missing element in Weinreb’s account,
which gives us an account of legal analogy that gives it a respectable
role—not just of explaining a decision that was reached by other means—
but of justifying it; and when the conditions for the right analogy obtain,
the judge need not look further than the analogy in justifying her decision.
It now looks as if we reached the result Weinreb sought to establish:
merely relying on analogical reasoning produces outcomes considered
correct according to the standard of correctness adopted by that legal
system and does so by a method members of society find congenial.
Analogical reasoning “on its own seems” appears in more respectable light
now.44

III. THE DEATH OF ANALOGY?

A. Analogical Reasoning in a Diverse Society
So does analogy going to regain its lost respectability? I have tried to
offer the most sympathetic account of analogical reasoning, and still I
believe Weinreb’s approach is not going to win many supporters (at least
among legal academics in the United States45). This is because the model

44. Though I have no space to discuss this here, similar considerations explain two
other recent defenses of analogical reasoning. See Emily Sherwin, A Defense of
Analogical Reasoning in Law, 66 U. CHI. L. REV. 1179 (1999); Sunstein, supra note 14.
45. Practicing lawyers and judges, however, may be different. In a different context it
has been argued that in negligence cases the court and juries apply the “reasonable care”
standard and not the more “scientific” Hand formula, because they prefer “a judgment as
to dominant social practices and whether the defendant has complied with them.” Michael
Wells, Scientific Policymaking and the Torts Revolution: The Revenge of the Ordinary

16
 ANALOGICAL REASONING

of authority his account rests on two assumptions which very few legal
theorists and policymakers today are going to accept. One assumption I call
“skepticism,” by which I mean in this context the denial that we can
discover any true fundamental values that should guide our lives, or
alternatively the belief that even if we can find such principles they are not
determinate enough to yield answers to most particular cases that courts or
legislators have to deal with. This assumption is explicitly rejected by
many; and it is implicitly rejected by many more, when they offer
normative arguments on particular legal questions and assume that the
answer they offer is dictated by certain general principles. The most
commonly mentioned values are efficiency and justice, but other oft-
mentioned values include community, liberty, and equality. Anyone who
believes it is possible to attain fairly determinate answers to legal questions
by reliance on any of these values will have no use for analogy, except
perhaps as a heuristic or rhetorical device. Instead of relying on analogy
such theorists will urge us to rely on experts who will discover the correct
answers.46 If this means having to accept “counter-intuitive” results that

Observer, 26 GA. L. REV. 725, 735 (1992); accord Catharine Pierce Wells, Tort Law as
Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 MICH. L. REV.
2348, 2389 (1990). Can this be just the result of a growing gap between the academic
lawyers and practitioners? Perhaps. Academics may be more aware of the way in which
what is considered normal or reasonable behavior is sometimes a label for the values and
judgments accepted by majorities. See note 48 infra. Furthermore, even if it could be
argued that in matters of personal injury there are not likely to be significant differences
regarding what counts as reasonable behavior among people from different social
backgrounds, the question which analogy is “more correct,” especially when asking us to
export reasons from one legal domain to another, is likely to be subject to greater
disagreement due to social background.
46. The experts can take many forms. Sunstein usually considers risk analysts and
economists. See, e.g., CASS R. SUNSTEIN, RISK AND REASON: SAFETY, LAW, AND THE
ENVIRONMENT (2002). In Dworkin’s case the experts are the philosophers. See RONALD
DWORKIN, LAW’S EMPIRE 407 (1986) (“It falls to philosophers … to work out law’s
ambitions for itself, the purer form of law within and beyond the law we have.”).
This raises the question whether expertise is limited only to means or extends also to
ends. Posner offers a middle ground suggestion that is worth mentioning here. His current
view is surely a form of what I called skepticism. See, e.g., RICHARD A. POSNER, THE
PROBLEMATICS OF MORAL AND LEGAL THEORY 6, 67 (1999) [hereinafter POSNER,
PROBLEMATICS]. And even though he advocates “common sense,” see RICHARD A.
POSNER, PRAGMATISM, LAW, AND DEMOCRACY 49-52 (2003) [hereinafter POSNER,
PRAGMATISM], and argues that the right decision is the one that “is reasonable in the
circumstances all things considered,” id. at 73, his common sense and reasonableness are
quite different from Weinreb’s. Posner wishes to promote “the real needs of real people,”
see RICHARD A. POSNER, OVERCOMING LAW 19 (1995), yet believes that experts are better
than lay people in discovering the best means for achieving those needs. See, e.g.,
POSNER, PROBLEMATICS, supra, at 46, 211; POSNER, PRAGMATISM, supra, at 78-80. His
skepticism leaves him (perhaps inevitably) relatively silent on questions of ends, apart
from his claim that the abstract philosophical discussions on ends do not represent the
needs of real people, and cannot resolve any dispute within society on these matters. See

17
 ANALOGICAL REASONING

may not be accepted by the community, then so be it. What we should do is

explain to people why their intuitions, analogies, and perhaps even
accepted values are mistaken. And if giving experts a greater role in
decision-making requires taking away certain topics from the courts,
because we no longer believe they have the requisite expertise to deal with
them, then so be it too.
There are, no doubt, within the legal academia many who, like Weinreb,
are what I called skeptics about the possibility of finding such truths. But
Weinreb is not likely to find support among them either, since his
argument rests on a second assumption, namely that there are some shared
communal values which are sufficient to guide action even if they are not
demonstrably true. The problem is that most of the skeptics (and often for
the very same reasons that they are skeptics) will also doubt that there are
some shared values to be found in contemporary diverse societies. The
problem for Weinreb is that without these two assumptions the argument
for the possibility of justifying analogical reasoning collapses.
A common accusation directed at judges in contemporary legal systems
is that they traditionally come from a particular (elite, male, white)
background, and wrongly assume that the values of their social group are
the values shared by the entire society. The earlier discussion shows how
this familiar claim relates to the questions of political obligation and legal
reasoning. One illustrative example will suffice to show this connection: in
the early days of the development of sexual harassment law several courts
rejected sexual harassment claims on numerous grounds. One of them was
that to allow sexual harassment claims could turn “[a]n invitation to dinner
… [to] an invitation to a federal lawsuit if a once harmonious relationship
turned sour at some later time.”47 This is an analogical argument of sorts: it
suggests that the demands of sexual benefits by a superior in return for a
promise of promotion are similar enough in a relevant sense to invitations
to dinner so that if we impose tort liability on the former we are bound to
impose tort liability on the latter. But many women argued that this
analogy utterly misunderstands the nature of sexual harassment. The very
suggestion that the two could be considered to be even remotely similar
shows that the judges making such comparisons had a completely different
understanding of those situations, perhaps even a different way of

RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 348-52 (1990). Whether this is a

stable position is a complicated question that cannot be addressed here.
47. Tomkins v. Pub. Serv. Elec. & Gas Co., 422 F. Supp. 553, 557 (D.C.N.J. 1976);
accord Corne v. Bausch & Lomb, Inc., 390 F. Supp. 161, 163 (D.C. Ariz. 1975)
(suggesting that sexual harassment claims would expose employers to liability “every time
any employee made amorous or sexually oriented advances toward another.”); Miller v.
Bank of America, 418 F. Supp. 233, 236 (D.C. Cal. 1976) (“It is conceivable, under
plaintiff's theory, that flirtations of the smallest order would give rise to liability.”).

18
 ANALOGICAL REASONING

understanding the relationships between men and women, than women

do.48
Thus, the model of political authority that analogical reasoning
presupposes is one that faces what looks like insurmountable difficulties in
any modern pluralist society. But without the two assumptions of
skepticism and shared values there does not seem to be much hope for
justifying analogical reasoning as the uniquely appropriate (or even as one
significant method among others) for justification of legal decisions. True,
there may still be areas in which it might be possible to rely on analogies
where social diversity does not seem to translate to different moral
attitudes, but since the law is usually fairly settled in those areas, it does
not seem we would need to give analogical reasoning the central role
Weinreb gives it.

B. Staying within the Law

Does this mean that analogical reasoning is doomed, or is there any
additional, alternative justification for it? Occasionally Weinreb suggests a
more modest ideal that could perhaps justify reliance on analogy. “The law
is,” says Weinreb, “in a sense, a ‘seamless web,’ not because it prescribes
in advance the outcome of every case that may arise, but because when a
case does arise, however unusual it may be, the outcome is to be found
within the law” (p. 102). Analogical reasoning, then, is the proper method
of reasoning for the lawyer, because employing it is what guarantees that
the lawyer remains within the law. But why is staying within the law
important? Weinreb mentions the rule of law (pp. 146-48), but we need
more than a slogan to understand why this ideal may be important.
I believe Weinreb’s view derives from a belief that the increasingly
complex and bewildering world around us is our own making, and that to
resolve the problems that we face we must not embrace more theorizing
and not succumb to the temptation to relegate more and more questions
about the right way to lead our lives to experts. Instead we should try to
solve those problems with the more modest means of everyday life using
traditional problem-solving skills with the aid of “practical wisdom” or

48. “Sexual harassment denies [the] choice [of whether, when, where, and with whom
to have sexual relationships] in the process of denying the opportunity to study or work
without being subjected to sexual exactions.” CATHARINE A. MACKINNON, SEXUAL
HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 25 (1979). Not only
are sexual harassment cases and invitation to dinner relevantly not similar, this passage
suggests that they are in fact exact opposites.
This is only an example of the more general problem of articulating the demands of
“reasonableness” where we have little reason to believe we could found law’s authority on
generally accepted norms. (Compare this to the point made at p. 13 supra.) Not
surprisingly, at both ends of the political spectrum one finds dissatisfaction with such
standards. See Antonin Scalia, The Rule of Law as the Law of Rules, 56 U. CHI. L. REV.
1175, 1182-83 (1989); Nancy S. Ehrenreich, Pluraist Myths and Powerless Men: The
Ideology of Reasonableness in Sexual Harassment Law, 99 YALE L.J. 1177 (1990).

19
 ANALOGICAL REASONING

“experience.”49 Staying within the law in this sense means keeping the law
as within our lives, and analogical reasoning fits this picture because by
basing legal reasoning on it we hope to guarantee that the solutions to the
disputes heard in court are easily within our grasp, and they are within our
grasp because in some sense they are already found inside us. Any
“external” theory is therefore not just external to the law, it is alien to our
life, and as such cannot motivate us to action.50
The everyday method of analogical reasoning looks like a perfect fit to
such ideas. But can analogical reasoning actually guarantee that? Even
Weinreb must admit that the rule of law cannot be satisfied by merely
relying on traditional legal materials such as previous cases and the use of
analogical reasoning, since as we have seen analogical reasoning by itself
simply cannot constrain the judge.
In the end Weinreb mentions yet another Harvard Law School
professor, perhaps the most famous of them all, Christopher Columbus
Langdell, often credited for inventing the case method. Weinreb does not
hide his admiration for the “genius of the case method” (p. 145),51 and
argues that it is the appropriate method for training people to think like
lawyers (p. 146). Weinreb apparently believes that using analogical
reasoning when learning law using the case method will keep us within the
law, and thus, if nothing else, will provide us with a method of
argumentation that is part of our life, and that all, judges as well as
laypeople, can relate to. By tying the study, explanation, and justification
of law to cases, the case method seemed to promise a means for teaching
students how to stay within the law and thus maintain the immanent
connection between life and law.
Prevalent views on Langdell may militate against this perception,
because it is often said that he was determined to maintain law as separate

49. This is an idea with a long history and which in somewhat different ways has
found supporters in different disciplines. See, e.g., W.D. ROSS, THE RIGHT AND THE GOOD
32-33, 41-42 (1930); Colin S. Diver, The Optimal Precision of Administrative Rules, 93
YALE L.J. 65, 98 (1983); Charles E. Lindblom, The Science of “Muddling Through,” 19
PUB. ADMIN. REV. 79 (1959); Emily Sherwin, A Defense of Analogical Reasoning in Law,
66 U. CHI. L. REV. 1179, 1193-94 (1999). But cf. SUNSTEIN, supra note 46, at 59-60
(criticizing the view that ordinary people have a richer conception of rationality or risk
conceptualization than experts).
50. Ernest Weinrib’s formalism with his emphasis of “immanence,” and which puzzled
many readers, is probably best understood in this way. See generally Ernest J. Weinrib,
Formalism: On the Immanent Rationality of Law, 97 YALE L.J. 949 (1988).
51. Does this cornerstone of the Harvard Law School education explain why Harvard
Law School professors have been so insistent on defending analogy as the paradigmatic
form of legal reasoning? In addition to Weinreb and Brewer, supra note 6, see Charles
Fried, The Artificial Reason of Law, or What Lawyers Know, 60 TEX. L. REV. 35, 57
(1981) (“Analogy and precedent are the stuff of the law because they are the only form of
reasoning left to the law when general philosophical structures and deductive reasoning
give out”).

20
 ANALOGICAL REASONING

from other disciplines. Law on this picture is to provide its own

justification. But this picture of Langdell’s approach is a caricature,52 and
in fact, it seems that the case method is particularly adept for the idea of
acceptance and to the view that law should be learned through “particular
facts” (p. 144) and not just by memorizing abstract rules.53 By working out
why judges decided cases the way they did without looking for economic
or moral justification for those cases, we both learn certain substantive
rules, but we learn, and affirm, a conception of law that maintains it as part
of our lives.
There may seem to be a superficial similarity between an approach that
conceives of law as something internal to our lives, that makes analogies
its paradigmatic tool for answering legal questions, and that hails the case
method as the best method for learning the law. But Weinreb’s discussion
misses not only the extent to which examples like Adams, nice as they are,
are not representative of the sort of issues that lawyers today need to
grapple with. It misses the extent to which the case method contributed to
the demise of this conception of law in which analogical reasoning is
central to solving legal problems. When Langdell introduced the case
method he modeled it after nineteenth century science with its emphasis on
the construction of general theory from the accumulation of a great mass of
data according to the then common model of natural science.54 Legal
science could thus be defined as the search for the general principles
hidden in the great mass of cases. But when law and its development are
taught through cases thought to embody some principles which are not
clearly stated in them, the creative theorist can now use the cases to show
that what “really” drives the decisions are the principles of moral
philosophy, the laws of supply and demand, the personal biographies of the
judges, the zeitgeist and what not. If you look hard enough in the cases,
you will find there all of this and more. And because these ideas are
introduced through an examination of the cases, no-one can complain that
the students are not taught “the law.” Thus by using the case method future
lawyers and judges are trained that those principles that might otherwise
have been believed to be external perspectives on the law, are in fact part
of it. Once this has been accepted, it is no huge step to suggest that legal

52. See WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN
AMERICAN LEGAL EDUCATION 122-28 (1994); ANTHONY J. SEBOK, LEGAL POSITIVISM IN
AMERICAN JURISPRUDENCE 83-102 (1998); Marcia Speziale, Langdell’s Concept of Law
as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 VT. L. REV. 1
(1980). Though somewhat different in their interpretations they all offer more balanced
assessment of Langdellian formalism.
53. See JOSEF REDLICH, THE COMMON LAW AND THE CASE METHOD IN AMERICAN
UNIVERSITY LAW SCHOOLS 36-37 (1914); see also Thomas C. Grey, Langdell’s
Orthodoxy, 45 U. PITT. L. REV. 1, 27 nn.97-98 (1983). Cf. Weinrib, supra note 50, at
1002-04.
54. See Speziale, supra note 52, at 7-8, 26-37, Hoeflich, supra note 31, at 119-20.

21
 ANALOGICAL REASONING

reasoning would be improved if lawyers started thinking and justifying

their decisions more consciously on those hitherto hidden principles
without having to rely on earlier cases. The cases that in the first stage were
shown to exemplify certain hidden (non-legal) principles, can then be cast
aside for exactly the same reason, namely their inability to present and deal
with the issues at hand by relying on the relevant principles without
obscurity. Soon enough these considerations become the “internal logic” of
the law. No wonder then, that so many lawyers today, trained by the case
method (and perhaps are even still using it in their classes), believe that the
correct answer to legal disputes is the most efficient one. Only in this way,
they will tell you, will you be thinking like a lawyer.

22