Traditional legal perspectives on analogical reasoning in law posit that legal reasoning involves the initial step of recognizing a similarity between the facts of some previous case and the facts of the instant case. And the recently widespread skeptical views see the claims of analogical reasoning in law as little more than a mask for unacknowledged judicial lawmaking. Against both of these views, we argue that analogical reasoning, in law and elsewhere, involves an initial perception of similarity, but a perception that is based on the knowledge, experience, training, and possibly the expertise of the person drawing the analogy. As a result, analogical reasoning in law differs from simple rulemaking or lawmaking, but does embody the categories embedded in the distinctively legal knowledge and experience that lawyers and judges bring to bear on the process of analogical reasoning.
Schauer, Frederick and Spellman, Barbara A.
"Analogy, Expertise, and Experience,"
University of Chicago Law Review: Vol. 84
, Article 12.
Available at: http://chicagounbound.uchicago.edu/uclrev/vol84/iss1/12