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Analogy, Expertise, and Experience

21 Pages Posted: 2 Nov 2017  

Frederick Schauer

University of Virginia School of Law

Barbara A. Spellman

University of Virginia School of Law

Date Written: November 2, 2017

Abstract

Traditional legal perspectives on analogical reasoning in law posit that legal reasoning involves the initial step of recognizing a similarity between the facts of some previous case and the facts of the instant case. And the recently widespread skeptical views about analogical reasoning in law see the claims for analogical reasoning as little more than a mask for unacknowledged judicial lawmaking. Against both of these views, we argue that analogical reasoning, in law and elsewhere, involves an initial perception of similarity, but a perception that is based on knowledge, experience, training, and possibly the expertise of the person drawing the analogy. As a result, analogical reasoning in law differs from simple rulemaking or lawmaking, but still embodies the categories embedded in the distinctively legal knowledge and experience that lawyers and judges bring to bear on the process of analogical reasoning.

Keywords: analogy, legal reasoning

Suggested Citation

Schauer, Frederick and Spellman, Barbara A., Analogy, Expertise, and Experience (November 2, 2017). University of Chicago Law Review, Vol. 84, No. 1, 2017; Virginia Public Law and Legal Theory Research Paper No. 2017-62. Available at SSRN: https://ssrn.com/abstract=3064100

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6777 (Phone)

Barbara Spellman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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