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Should Like Cases be Treated Alike?

Andrei Marmor

Cornell University - Law School

November 10, 2004

USC Law and Public Policy Research Paper No. 04-26

Are there any good reasons to treat previous judicial decisions as legally binding in similar cases, just because they are similar, even if the underlying reasons of the previous decisions determined the result? I argue in this short essay that this is the relevant question about treating like cases alike, and I offer two possible principles that may ground an affirmative answer: the principle that justice should be seen to be done, and the principle of protected expectations. Both answers are criticized as over inclusive and only partly defensible. Finally, the essay concludes with a suggestion that there are two modes of analogical reasoning in adjudication, and that one of them may rationalize a certain type of cases in which like cases should be treated alike.

Number of Pages in PDF File: 18

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Date posted: November 10, 2004  

Suggested Citation

Marmor, Andrei, Should Like Cases be Treated Alike? (November 10, 2004). USC Law and Public Policy Research Paper No. 04-26. Available at SSRN: https://ssrn.com/abstract=618382 or http://dx.doi.org/10.2139/ssrn.618382

Contact Information

Andrei Marmor (Contact Author)
Cornell University - Law School ( email )
Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio_andrei_marmor.cfm

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