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Law's Enterprise: Argumentation Schemes & Legal Analogy Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2019 Law's Enterprise: Argumentation Schemes & Legal Analogy Brian N. Larson Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law and Philosophy Commons, Legal Profession Commons, and the Legal Writing and Research Commons Recommended Citation Brian N. Larson, Law's Enterprise: Argumentation Schemes & Legal Analogy, 87 U. Cin. L. Rev. 663 (2019). Available at: https://scholarship.law.tamu.edu/facscholar/1303 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. Larson: Law’s Enterprise LAW’S ENTERPRISE: ARGUMENTATION SCHEMES & LEGAL ANALOGY Brian N. Larson* ABSTRACT Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last twenty-five years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: the “skeptics” are too focused on the rational force offered by the deductive syllogism when they should attend to the kinds of arguments that can provide premises for deduction—exactly the work that legal analogy accomplishes. Meanwhile, the “mystics” expect us to accept legal analogy without an account of how to discipline it. Using the argumentation schemes and critical questions of informal logic, this article constructs a theory grounded in philosophy, but kitted out for action. The theory is not skeptic or mystic, but dynamic. * J.D., Ph.D. Associate Professor of Law, Texas A&M University School of Law. For their valuable comments on earlier drafts of this essay and related work, I would like to thank Dr. Randy Gordon, Professors Francis J. Mootz III, Jeffrey Lipshaw, Wayne Barnes, and Lloyd Weinreb, and participants at Texas A&M University School of Law’s internal workshop, the 2018 conference of the Central States Law Schools Association, and the 2018 West Coast Rhetoric scholarship workshop at UNLV. 663 Published by University of Cincinnati College of Law Scholarship and Publications, 2018 1 University of Cincinnati Law Review, Vol. 87 [2018], Iss. 3, Art. 2 664 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 87 TABLE OF CONTENTS Abstract ................................................................................................ 663 Table of Contents ................................................................................. 664 Introduction .......................................................................................... 664 I. The Old Course: Argument by Legal Analogy ................................. 667 A. Argumentation ...................................................................... 668 B. Legal Analogy ....................................................................... 670 C. Accounts of Legal Analogy Thus Far ................................... 674 1. Deduction and Legal-analogy Skeptics ..................... 675 2. Abduction and Brewer’s Account ............................. 683 3. Induction: Not Helpful for Legal Argument ............. 687 4. Analogy and the Mystics ........................................... 688 D. The Aporia: Why We Still Need Answers ........................... 691 II. A New Tack: Informal Logic and Argumentation Schemes ........... 692 A. A Standard for Good Legal Arguments ................................ 692 B. Argumentation Schemes and Critical Questions .................. 697 III. The Legal (dis)analogy Argumentation Schemes .......................... 701 A. Legal Analogy Argumentation Scheme ................................ 701 B. Legal D (dis)analogy Argumentation Scheme ...................... 705 C. Relevant (Dis)Similarity in Depth ........................................ 706 D. The Argumentation Schemes Applied to a Legal Argument ............................................................................. 711 Conclusion ........................................................................................... 719 INTRODUCTION Lawyers make arguments before judges using legal analogies every day. A lawyer claims the judge should grant his or her client’s motion because this case is like earlier cases where courts granted the same type of motion and unlike earlier cases where courts denied such a motion. Law students invest considerable effort during their first year learning this form of argument. They learn it not just in their legal theory, analysis, and writing courses, but also in their common-law courses such as torts and contracts, and especially in courses where professors engage in Socratic dialogue. This kind of reasoning occurs in other fields,1 but it has a “special prominence” in the law.2 Indeed, arguing by legal analogy may 1. Grant Lamond, Precedent and Analogy in Legal Reasoning, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Spring 2016), § 1, http://plato.stanford.edu/archives/spr2016/entries/legal-reas-prec/ (last visited May 19, 2018). 2. Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 HARV. L. REV. 923, 925, 926 (1996). https://scholarship.law.uc.edu/uclr/vol87/iss3/2 2 Larson: Law’s Enterprise 2019] LAW’S ENTERPRISE 665 be what we mean when we say “thinking like a lawyer.”3 We may live in law’s empire, a realm that highly values rational consistency and logically determinate, correct answers about the law, in which “propositions of law [are] taken to be sound or true.”4 Nevertheless, on a day-to-day basis, the work we do consists of legal analogy and related categories of argumentation, dialogic activities where conceptions of soundness and truth compete—what I call “law’s enterprise.” And so, law professors tell their students that they need to think logically, but arguments from analogy are not logically valid; that is, they cannot achieve the highest degree of rational force, where the truth of the premises guarantees the truth of the conclusion.5 There is a sense in which every law student and lawyer knows this, and the problem has not escaped the attention of jurisprudes and other philosophers of law.6 Two stances toward the problem purportedly predominate: on the one hand are the skeptics (as Harvard Professor Scott Brewer calls them),7 who doubt the rational force of legal analogy, though some of them attempt to clean it up by converting it to a form of rule-based argumentation. They deny the existence of legal analogy or acknowledge it and attempt to convert it to deduction. On the other hand are the mystics (Brewer’s term again),8 who say legal analogy is a special kind of reasoning, with its own way of working, but they do not explain how to discipline it—how to produce and evaluate it according to some set of normative standards. They essentially ask us to trust them, or at least to trust legal analogy. But trust is in short supply among lawyers, especially when evaluating the argumentation of opposing counsel. Legal scholars, judges, and lawyers want means for assessing, critiquing, and possibly attacking such 3. See Frederick Schauer & Barbara A. Spellman, Analogy, Expertise, and Experience, 84 U. CHI. L. REV. 249, 261 (2017). See also Lloyd L. Weinreb, LEGAL REASON: THE USE OF ANALOGY IN LEGAL ARGUMENT ix (2d ed. 2016) (“[T]he use of analogy is at the very center of legal reasoning, so much so that it is regarded as an identifying characteristic not only of legal reasoning itself but also of legal education.”); Richard A. Posner, THE PROBLEMS OF JURISPRUDENCE 86–87 (1990) [hereinafter Posner, PROBLEMS] (Legal “analogy is the principal candidate for a method that will set lawyers apart from everyday reasoners.”). 4. Ronald Dworkin, LAW’S EMPIRE 110 (1986). 5. See infra Part I(C). 6. See infra Part I(C). 7. Brewer, supra note 2, at 953. See generally infra Part I(C). Among texts discussed there that are at least arguably those of skeptics are Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 571 n.2 (1987) [hereinafter Schauer, Precedent]; Posner, PROBLEMS, supra note 3; Larry Alexander, Bad Beginnings, 145 U. PA. L. REV. 57, 57 (1996); Frederick Schauer, THINKING LIKE A LAWYER: A NEW INTRODUCTION TO LEGAL REASONING (2009) [hereinafter Schauer, THINKING]. 8. Brewer, supra note 2, at 952. Schauer and Spellman prefer the terms “celebrants,” supra note 3, at 250 and “defenders,” id. at 266. See generally infra Part I(C). Among texts discussed there that are at least arguably those of defenders are Cass Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741 (1993) and Weinreb, supra note 3. Brewer classes himself as neither skeptic nor mystic, but I contend that he aligns most closely with the skeptics. Published by University of Cincinnati College of Law Scholarship and Publications, 2018 3 University of Cincinnati Law Review, Vol. 87 [2018], Iss. 3, Art. 2 666 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 87 argumentation. Lawyers want these means when evaluating judges’ opinions and deciding whether to appeal. They may also want
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