On Treating Unlike Cases Alike
Constitutional Commentary, vol. 34 (2018 Forthcoming)
19 Pages Posted: 7 Jun 2018
Date Written: May 23, 2018
From Aristotle’s time to the present, the idea of “treating like cases alike” has informed popular and academic thinking about equality, principally, and also about the idea of decision according to precedent. And although a host of thinkers has exposed the fundamental emptiness of the idea unless supplemented by some criterion of which likenesses are relevant and which not, an important implication of this line of thought is that a regime of precedent generally or of stare decisis particularly is one in which acts, events, and decisions that are in fact unalike are deemed to be alike in the service of various normative goals. This paper, written as part of a symposium on Randy Kozel’s Settled versus Right: A Theory of Precedent (Cambridge 2017), focuses on the way in which a norm of precedent requires treating unalike cases alike, and on the way in which such a norm has potential community-creating virtues.
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