Must Like Cases Be Treated Alike?

Abstract:     
The principle "treat like cases alike" is an ancient one, and it has often been identified with the rule of law. The principle has special importance in the modern administrative state, in which specific reforms might be undertaken to ensure that indistinguishable cases are treated in the same way. The sentencing guidelines are one example of such a reform, as are efforts to reduce disparities in jury determinations of liability and damages. The argument in this paper is that there is no general requirement that like cases be treated alike. Sometimes like cases should be treated alike for contingent reasons, such as to avoid economic dislocations that might result from nonuniform treatment, or to prevent discrimination or arbitrariness. But whether those reasons apply depends on the specific circumstances; they do not justify a general requirement that like cases be treated alike. There is a widespread intuition that it is unfair to treat like cases differently. But on closer examination fairness (or "integrity") does not require that like cases be treated alike; it only requires that any differences be the result of procedures that can be independently justified. That is why we accept, sometimes without difficulty, that otherwise identically situated people might be treated differently if they live in different political communities or grew up in different families. In fact, a general requirement that like cases be treated alike can perpetuate injustice: it will require that an unjust result, reached in one case, be replicated rather than corrected in future similar cases.

Keywords: rule of law

Working Paper Series