"While metaphor provides a space for innovation, the last essay-by G. Edward White-shows how reasoning by analogy is used to stitch together the threads of precedent that comprise law’s own history. Analogical reasoning, White argue, “is in fact the standard technique of reasoning in the Anglo-American legal system. It consists of establishing previously decided cases as ‘authoritative’ because they embody certain rules that the system has internalized.” It allows judges to construct a history of doctrine with little overt reference to the world outside law and, as a result, provides a crucial component of the argument that legal decision making is autonomous. And, White notes, while analogical reasoning may seem to the nonlawyer to impose few constraints on judges, in practice the legal system places a “high value on following precedent and thus treats most previous decisions whose rules appear arguably apposite as being so. When lawyers and judges seek to be creative, the vehicle for their creativity is the marshaling of rich and persuasive analogies yet since those analogies “invariably summon up existing cases, rules, and principles, the discourse of American law is inherently time-bound and conservative.”"
January 1, 1970