On Treating Unlike Cases Alike

Constitutional Commentary, vol. 34 (2018 Forthcoming)

19 Pages Posted: 7 Jun 2018

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Date Written: May 23, 2018

Abstract

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.

Suggested Citation

Schauer, Frederick, On Treating Unlike Cases Alike (May 23, 2018). Constitutional Commentary, vol. 34 (2018 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3183939

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

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

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