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SHOULD LIKE CASES BE TREATED ALIKE?

Published online by Cambridge University Press:  22 July 2005

Andrei Marmor
Affiliation:
University of Southern California

Extract

It is a familiar slogan in legal circles that “like cases should be treated alike.” This idea is often confused with two others: the rationale of analogical reasoning in adjudication, and the value of coherence. I would like to keep these three issues separate, at least for a while. What is unique about idea of treating like cases alike? I would suggest that the interesting cases (and by “cases,” I do mean judicial decisions, to which this essay is confined) are those in which legal decisions are not entirely determined by reasons. If two similar cases are actually determined by the reasons that apply to them, then there is no need for the principle of treating like cases alike: The determining reasons would do all the work of justifying similar rulings. This is what makes the principle of treating like cases alike uniquely problematic and separate from the questions of analogical reasoning and coherence. In analogical reasoning, for example, the assumption is that if there is a good reason that determines a decision X under circumstances C1, and we now face a similar case C2, then the reason that determines X in C1 may also determine (or support) the decision X under C2. In other words, analogical reasoning typically appeals to the reasons that underlie the previous decision(s) and extends the application of those reasons to the new case. (I will qualify this account of analogy in the last section.)

Type
ARTICLES
Copyright
© 2005 Cambridge University Press

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