Symposium on analogy and law 

Chair and Discussant: David G. Kamper, Univerity of California, Los Angeles

Speakers: Prof. Fred Schauer, University of Virginia; Dr. An Hertogen, University of Auckland; Dr. Joe Blass, Northwestern University

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The Persuasiveness of Domestic Law Analogies in International Law

Dr. An Hertogen, University of Auckland

Domestic law analogies are often treated dismissively in international law cases and scholarship. Yet they continue to find their way into arguments about international law and sometimes into international law itself. Rather than rejecting such analogies, I dissect the process of analogical reasoning into three steps, drawing on insights from the study of analogical reasoning in other disciplines. The aim of working through the three steps is to assess when a particular domestic law rule or concept can ‘fit’ in the different international law contexts and thus provide the basis for a domestic law analogy in international law.

Analogy and Common Law Reasoning: Of Guns and Houseboats

Prof. Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia

Although much of American law is statutory, much, including much of constitutional law, involves textually unconstrained common law reasoning. And in such cases the job of the analogizer is to find the appropriate line of cases – the category – within which to find the appropriate source analog. Two recent Supreme Court cases present the issue. In one, important issues of federal jurisdiction turned in whether a houseboat was best analogized to a house or to a boat. And more recently and more prominently, Justice Thomas’s majority opinion in the Bruen case concludes that reasoning by analogy is and will be essential to applying the Second Amendment’s 1791 language to modern problems of gun control. This presentation, drawing heavily on work done in collaboration with Professor Barbara Spellman, explores these cases and these issues.

Extracting and Applying Legal Rules from Precedents

Dr. Joe Blass, Northwestern University

In common-law legal systems, settled cases become legal precedents, sources of law that are applied to future cases.  Legal scholars debating the role of analogy in legal reasoning have primarily focused on whether and how precedents are applied to undecided cases.  In this talk I will argue that analogy plays a critical role in learning the content of law across legal precedents -- to learn the rules that govern cases -- separate from any role analogy might have in resolving those cases.  I present an AI system that models this process, extracting legal concepts across precedents and applying them to new cases both as rules and by analogy. 

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Contributors

An Hertogen is a Senior Lecturer at the University of Auckland Waipapa Taumata Rau, New Zealand. She completed her undergraduate law degree at the KU Leuven in Belgium, before studying for her LLM at Columbia University in New York, and for her PhD at the University of Auckland. Her research interests are in international law and international economic law.  She is working on a project on the meaning of good neighborliness in international law.

Frederick Schauer is the author of The Proof: Questions of Evidence in Law, Politics, and Everything Else (2022), The Force of Law (2015), Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009), and Profiles, Probabilities, and Stereotypes (2003), all published by the Harvard University Press, as well as Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in law and in Life (Oxford 1991), Free Speech: A Philosophical Enquiry (Cambridge 1982), and The Law of Obscenity (BNA 19876).

Joe Blass is a once and future researcher working at the intersection of AI and Law, currently a judicial law clerk for the Hon. Joshua Deahl at the District of Columbia Court of Appeals.  He received his J.D. and Ph.D. degrees from Northwestern University, writing his thesis on an analogical model of common-law learning and reasoning.  His research focuses on what it means to have computers perform tasks that require an essential component of "judgment," an I'll-know-it-when-I-see-it quality that can sometimes seem ineffably human.  His AI research has focused on cognitively-inspired models of legal, moral, and commonsense reasoning.  His legal research focuses on the risks and potential impacts of Artificial Intelligence on the Justice system.

David G. Kamper is a PhD student in cognitive neuroscience and computational cognitive science at University of California, Los Angeles in the Reasoning Lab. He also works with the Fox Lab and Jaime Castrellon. He works work closely and is strongly affiliated with his  post-baccalaureate research lab at Brown University: The Causality and Mind Laboratory with Dr. David Sobel. David’s broad research program is on the cognitive underpinnings of law: the study of rules that emerge due to human nature (our cognition), and how that informs and improves manmade rules (law) which moderate interactions between two persons or distinct groups. His research specifically focuses on law and neuroscience, specifically on tort and intellectual property.