Should Like Cases be Treated Alike?

18 Pages Posted: 10 Nov 2004  

Andrei Marmor

Cornell University - Law School

Date Written: November 10, 2004

Abstract

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.

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

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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