Judges create legal rules by weighing case similarities, not by applying fixed rules

Evidence

As Levi recognized, however, the issue is not that simple. Both sets of earlier cases—those upholding and those striking down laws regulating expressive conduct—presumably resemble the flag-burning case in some respects and differ from it in others. A judge must therefore determine which similarities and which differences are decisive. According to Levi, this judicial determination of similarity and difference is the key step in the legal process. … To make this determination, the judge not only decides the case but also devises the legal rule by which the decision is justified. Assuming that the judge ruled in favor of the flag burner, the opinion would announce a legal rule that reconciled the ruling with previous decisions protecting expressive conduct. It would also explain why the present case differed from those in which the Court had ruled against First Amendment claims. Put differently, whereas the deductive model suggests that judges decide by applying known rules to diverse facts, Levi insists that “the rules arise out of a process which, while comparing fact situations, creates the rules and then applies them.” — G. Alan Tarr, Judicial Process and Judicial…, 1263

To make this determination, the judge not only decides the case but also devises the legal rule by which the decision is justified. Assuming that the judge ruled in favor of the flag burner, the opinion would announce a legal rule that reconciled the ruling with previous decisions protecting expressive conduct. It would also explain why the present case differed from those in which the Court had ruled against First Amendment claims. Put differently, whereas the deductive model suggests that judges decide by applying known rules to diverse facts, Levi insists that “the rules arise out of a process which, while comparing fact situations, creates the rules and then applies them.” — G. Alan Tarr, Judicial Process and Judicial…, 2526

Categorization

• DEFINE: Defines Levi’s analogy/reasoning-by-example model of judicial decision making as the rule-creating step of the legal process.
• XREF: Connects to the earlier chapter claim that Legal Realists proposed analogy-based reasoning as an alternative to deduction. — connects to: Deductive reasoning cannot explain novel cases, competing rules, or legal change — G. Alan Tarr, Judicial Process and Judicial…, 1256; Judicial reasoning hinges on judging which analogies are decisive — G. Alan Tarr, Judicial Process and Judicial…, 2525; Conflicting sister-state precedents paradoxically fuel common-law change rather than stability — G. Alan Tarr, Judicial Process and Judicial…, 3534 (+11 more)
• corroborated: 2 independent passages support this claim — G. Alan Tarr, Judicial Process and Judicial…, 1263; G. Alan Tarr, Judicial Process and Judicial…, 2526
• recurring: this claim recurs 3 times within its source

Broader Connections

• Judges create and reshape legal rules by reasoning analogically across cases, not by deduction #corroborates (0.97) — G. Alan Tarr, Judicial Process and Judicial…, 2542
• Common law rules arise from comparing cases, not from tracing prior logic #corroborates (0.95) — Burton, Steven J, An Introduction to Law and Legal…, 222
• Judges expand or narrow precedent by reasoning analogically, not mechanically. #corroborates (0.95) — G. Alan Tarr, Judicial Process and Judicial…, 1278
• Legal analogy argues from particular facts to particular consequences based on similarities #expands (0.80) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 547
• Legal reasoning reduces to the judge drawing distinctions and the lawyer predicting them #expands (0.78) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1301
• Judges create law when forced to choose among competing interpretations. #expands (0.75) — G. Alan Tarr, Judicial Process and Judicial…, 196
• Valid legal analogies depend on relevant similarities rather than case quantities #expands (0.74) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 343
• The scope and meaning of legal rules depend on factual similarities #qualifies (0.72) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 151
• Advocates debate whether case factual similarities are legally material #expands (0.72) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 581