LEGAL REASON: THE USE OF ANALOGY IN LEGAL ARGUMENT

Vol. 15 No.8 (August 2005), pp.784-787

LEGAL REASON: THE USE OF ANALOGY IN LEGAL ARGUMENT, by Lloyd L. Weinreb. New York: Cambridge University Press, 2005. 192pp. Hardback. £40.00/$60.00. ISBN: 0-521-84967-5. Paper. £14.99/$18.99. ISBN: 0-521-61490-2.

Reviewed by Lief H. Carter, Department of Political Science, The Colorado College. Email: lhcarter@coloradocollege.edu .

The April 10, 2003 issue of THE RECORD, the independent student newspaper at the Harvard Law School, carried the article “Ten Professors to Take.” The article ranks Professor Lloyd Weinreb among Harvard’s most sought after professors and describes him, in part, this way:

What students will find in Weinreb is a model of competence, a master of clarity, and someone who knows exactly where to put the spotlight on the issues. His mild-mannered approach also masks considerable dry wit that makes his classes enjoyable even in the earlier hours.

The article also recommends Professor Scott Brewer with these words:

Much maligned for his logic-strewn take on the law, Brewer’s appearance on this list may shock those who have had him for Contracts. But Brewer’s bread and butter is jurisprudence, and that’s where his use of “lush green” formalism will challenge students to reconsider the bedrock of judges’ assumptions.

In LEGAL REASON, Weinreb, a pragmatic “master of clarity” takes down his junior, the “lush green” formalist.

Readers who follow jurisprudential literature, either professionally or simply because such literature tends pleasantly to stimulate the brain in ways that much conventional social science writing does not, will probably enjoy this short book immensely, rather as one enjoys completing a satisfying Sunday crossword puzzle. Readers who do not follow this literature can safely skip it, not because the book lacks merit but because they will not be able to shake the sense that they are simply witnessing, from a distance, a Harvard Law School in-house intellectual food fight.

The casus belli is Scott Brewer’s 1996 HARVARD LAW REVIEW article, “Exemplary Reasoning: Semantics, Pragmatics, And The Rational Force Of Legal Argument By Analogy.” Here, in a nutshell, Brewer argues that reasoning by analogy, far from lying close to the heart of legal reasoning, as both the case method of legal education and Levi’s (1962) classic work on legal reasoning suggest, is of no independent help in legal reasoning at all. Sometimes analogical reasoning is disguised deductive reasoning, and the mechanisms of deductive logic do the real heavy lifting. More often, analogical reasoning does no legally analytical work at all because analogies are a dime a dozen. Apples and tennis balls are both round and about the same size, but what would warrant drawing an analogy between them? What makes a similarity a relevant similarity? [*785]

According to Brewer, Analogy Warranting Rules (AWRs, in his analysis), not the analogies themselves, by defining the relevance of some analogical similarities but not others, do the heavy lifting. To illustrate, the analogy between cases involving drug sniffing dogs and cases in which a police officer overhears an incriminating conversation in public does not itself generate the conclusion that dog sniffs are not protected by the Fourth Amendment. The analogy simply steers us toward the more general AWR: information obtained “about a person or thing in a public place without intrusion on the person or taking possession of or interfering with the use of the thing” (p.24) is not a protected search. Hence a dog sniff is not a protected search.

The core of Weinreb’s rejoinder is simple. Judicial justifications in all areas of American law routinely place emphasis on analogies. Why? An opinion that leaves out this step has something missing; “without the analogy, the Court’s argument is incomplete” (p.60). Why do we perceive holes in opinions that skip this step? Because without that step, judicial decisions cease to be judicial—bound and determined by the specific facts of the dispute between the parties—and become legislative actions. A judicial opinion in a dog sniffing case that simply proclaimed the AWR above would read suspiciously like a general statutory order. The analogy, because it ties the facts of “the case at bar” to the facts of past disputes, reassures us that attention to case facts, not legislative policy-making ideals, have guided the judge to her decision.

Summarized this way, readers can see that mastering Weinreb v. Brewer is not a prerequisite for competence as a public law political scientist. That said, at least three secondary benefits make this book a good read.

First, Weinreb, in passing, discusses some classically delicious legal cases and questions. A man sleeping in his berth on a steamboat has his wallet lifted from his coat pocket through an open porthole. Does the steamboat have insurer’s liability for the loss without evidence that the steamboat company itself acted negligently? At common law, innkeepers have such liability. But a precedent also holds that railroads are not strictly liable for losses to passengers sleeping in railway sleeping cars. What result? Or, a hotel pipes radio programs into each of its rooms for its guests’ enjoyment. Does the hotel owe royalties to the holders of the radio programming copyrights?

Second, those readers who follow the jurisprudential writings of luminaries like Posner and Sunstein will find here astute criticisms of some of their positions. Why, to take just one example, does Posner’s pragmatic, consequence-driven analysis attach no economic benefit to following the rule of law, no cost to ignoring it (pp.117-121)?

Third, it is somehow satisfying that Weinreb, born in 1936, follows a thoroughly postmodern approach to the subject and in doing so upends the suspiciously scholastic work of someone several decades his junior. (Brewer’s bio shows he graduated from college in 1979.) While he could have developed the concept more concisely, Weinreb understands clearly enough that the [*786] question is never whether the judge got the right answer but rather whether the judge persuades us of her impartiality. Brewer’s search for demonstrable correctness as the Holy Grail of judicial legitimacy just bogs him down in minute distinctions that judges do not in fact make. It is logically impossible to “demonstrate the ultimate moral ground of law” (p.39n), but that failure does not automatically make legal results the product of will rather than reason.

Thus in the case of the steamboat thief, it does not matter whether the judge follows the railroad analogy or the inn analogy. Either is sufficient to demonstrate that the judge has played the judicial role impartially and appropriately. (Cf. Carter and Burke 2005, ch. 2.) Weinreb implicitly argues throughout the book that we pay high costs when we abandon the rule of law, yet at the same time shows us how easy it is to reason well. Indeed, he reminds us that we do it all the time. Most of the time analogical reasoning, in law as in everyday life, is efficient and fertile. At the very least, reasoning by analogy beats ignorant random guessing or paralyzed inaction. In short, whether it is essentially correct or not, analogical reasoning—Weinreb uses the example of a woman who spills cranberry juice on a white tablecloth and, asking for help, is told “Try rubbing it with salt. Salt works on my red wine stains” (p.68ff)—meets the basic criteria for legal impartiality. Analogies take the result out of the realm of judicial will, opinion, and bias, and place it in the world of mutual experience and fact.

This book has its share of off-putting frustrations. The very first paragraph wrongly states the title of Levi’s classic, though it is correctly stated in other places. The index is unreliable. Readers who turn to the index, sensing that Quine lies at the heart of the book’s argument, will find no reference to Weinreb’s discussion of Quine on page 164. Also, this jurisprudential literature manages to ignore the importance of story telling as distinct from formal reasoning in all legal advocacy.

But, whether you read the book or not, if you have time to Google “Lloyd+Weinreb”+“Harvard+Law” you will meet a remarkable model of competence and clarity. Weinreb has known where to put the spotlight on matters of criminal law and procedure, copyright, theories of natural law, environmental law and, in this case, pragmatic legal reasoning. I suspect Weinreb’s wise rejection of the search for demonstrable correctness simply illustrates the wisdom of any experienced lawyer. Indeed, how scholasticism in any area of inquiry survives in the wake of Heisenberg, Kuhn, Quine, Fish, Rorty, and many other thinkers remains, and least for this reviewer, a complete mystery.

REFERENCES:

Brewer, Scott. 1996. “Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy.” 109 HARVARD LAW REVIEW 923-1038.

Carter, Lief and Thomas Burke. 2005. REASON IN LAW. New York: Pearson Longman.

Levi, Edward. 1962. AN INTRODUCTION TO LEGAL REASONING. Chicago: University of Chicago Press. [*787]

THE RECORD http://www.hlrecord.org/media/paper609/news/2003/04/10/Etc/Ten-Professors.To.Take-413410.shtml

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