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Full-Text Articles in Law
Catalogs, Gideon Parchomovsky, Alex Stein
Catalogs, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …
Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum
Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum
Georgetown Law Faculty Publications and Other Works
The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.