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🪵 The Threshold

Judges expand or narrow precedent by reasoning analogically, not mechanically.

Properties1
tagsja-picks, xref, causal_relationships, trade, singleton, define, corroborated, category/causal-relationships

3 min read

Judges expand or narrow precedent by reasoning analogically, not mechanically.

Evidence

This survey of the Supreme Court’s privacy rulings illustrates one way that legal change occurs in a system of precedent. Judges may not apply precedent in the mechanical fashion the deductive model suggests. Rather, they may reason by example or analogy and thus expand or narrow the reach of earlier decisions. … In Eisenstadt and Roe, for example, the Court discovered similarities to Griswold that led it to extend the right to privacy to new situations. In contrast, the Court found that the situation in Bowers was fundamentally different from that in previous cases and concluded that the right to privacy did not prevent legal regulation of homosexual activity. Only when the Court in Lawrence reconceptualized its understanding of the facts did it reach a different conclusion. — G. Alan Tarr, Judicial Process and Judicial…, 1278

This survey of the Supreme Court’s privacy rulings illustrates how legal change may occur in a system of precedent. Judges may not apply precedent in the mechanical fashion the deductive model suggests. Rather, they may reason by example or analogy and thus expand or narrow the reach of earlier decisions. In Eisenstadt and Roe, for example, the Court discovered similarities to Griswold that led it to extend the right to privacy to new situations. In contrast, the Court found that the situation in Bowers was fundamentally different from that in previous cases and concluded that the right to privacy did not prevent legal regulation of homosexual activity. Only when the Court in Lawrence reconceptualized its understanding of the facts did it reach a different conclusion. — G. Alan Tarr, Judicial Process and Judicial…, 2542

Categorization

  • XREF: Pays off ch50’s contrast between deductive reasoning and Legal Realist analogy-based reasoning, and ch47’s Bowers-to-Lawrence reversal. — connects to: The law rarely dictates outcomes, so judges’ political views decide most cases. — G. Alan Tarr, Judicial Process and Judicial…, 1283; Judges create legal rules by weighing case similarities, not by applying fixed rules — G. Alan Tarr, Judicial Process and Judicial…, 1263; Judges create and reshape legal rules by reasoning analogically across cases, not by deduction — G. Alan Tarr, Judicial Process and Judicial…, 2542 (+4 more)
  • DEFINE: Distinguishes analogous reasoning from the mechanical deductive model of judging.
  • corroborated: 2 independent passages support this claim — G. Alan Tarr, Judicial Process and Judicial…, 1278; G. Alan Tarr, Judicial Process and Judicial…, 2542

Broader Connections

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