1. Larry Alexander & Emily Sherwin, Demystifying Legal Reasoning (2008).

2. See, e.g., id.; Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decisions in Life and Law (1991); Alexander, Larry, Constrained by Precedent, 63 S. Cal. L. Rev. 1 (1989)Google Scholar.

3. Frederick Schauer, Precedent, in Routledge Companion to Philosophy of Law 123, 130 (2012).

4. Id.

5. Alexander & Sherwin, Demystifying,supra note 1, at 31–104; Schauer, Precedent, supra note 3; Schauer, Frederick, Why Precedent in Law (and Elsewhere) Is Not Totally (or Even Substantially) about Analogy, 3 Persp. on Psychol. Sci. 454 (2008), at 454–460CrossRefGoogle Scholar.

6. Since I am interested only in theories of precedent, I am interested only in common-law systems. All further references to judicial reasoning refer only to common-law judicial reasoning, and likewise for references to judges, cases, and so on.

7. See Alexander & Sherwin, Demystifying, supra note 1, at 31–104; Schauer, Precedent, supra note 3; (2012); Schauer, Why Precedent, supra note 5.

8. See, e.g., Alexander & Sherwin, Demystifying, supra note 1; Lamond, Grant, Precedent and Analogy in Legal Reasoning, in The Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2008)Google Scholar, available at http://plato.stanford.edu/archives/fall2008/entries/legal-reas-prec/.

9. This caveat is necessary to avoid confusion. A theory explaining the sequences of neural firings occurring when judges make decisions is clearly not a philosophical theory of judicial reasoning, despite explaining the same data. We are looking for an explanation in the language of cognitive or folk psychology, not neuroscience or chemistry.

10. Some in the legal-realist camp may argue that all judicial reasoning is in fact like this, i.e., all decisions are reached due to prejudice, or self-interest, or class interest, and so on. If that is right, then a theory of judicial reasoning takes on a different tone, as it becomes an account of what judges think they are doing in making decisions, or what they present themselves as doing, or maybe what they ought to do. I disagree, but it matters little here, where my purpose is to argue that one theory that realists reject is stronger than another that they also reject.

11. Schauer, Why Precedent, supra note 5, at 458 (emphasis added).

12. Scholz, Barbara C., Pelletier, Francis J. & Pullum, Geoffrey K., Philosophy of Linguistics §2.1, in Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2011)Google Scholar, available at http://plato.stanford.edu/entries/linguistics/.

13. Id., §2.

14. Forms of legal realism may be outliers; see supra note 10.

15. See, e.g., Ronald Dworkin, Law's Empire (1986).

16. On the rule-based side, see Alexander & Sherwin, Demystifying, supra note 1; and Schauer, Playing by the Rules, supra note 2. On the analogical front, see Brewer, Scott, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 923 (1996)CrossRefGoogle Scholar; Ellsworth, Phoebe, Legal Reasoning, in The Cambridge Handbook of Thinking and Reasoning 685 (Holyoak, Keith J. & Morris, Robert G. Jr. eds., 2005)Google Scholar; and Horty, John, The Result Model of Precedent, 10 Legal Theory 19 (2004)CrossRefGoogle Scholar.

17. See Alexander & Sherwin, Demystifying, supra note 1, at 31–64, 131–237; see generally, Schauer, Playing by the Rules, supra note 2.

18. See Alexander & Sherwin, Demystifying, supra note 1, at 12 n.11, 21 n.38, for a comparison between Alexander and Sherwin's view on the extraction process and Schauer's.

19. See Alexander, Larry & Prakash, Saikrishna, Is That English You're Speaking? Some Arguments for the Primacy of Intent in Interpretation, 41 San Diego L. Rev. 967 (2004)Google Scholar.

20. Schauer, Why Precedent, supra note 5, at 458.

21. Alexander & Sherwin, Demystifying, supra note 1, at 41.

22. Rule theorists have an argument for this claim, namely, if all judges follow precedent only when it is justified by the value of maintaining the rule, and all judges mutually know this, then the value of maintaining the rule approaches zero, because each judge knows that each rule can be disobeyed at any time and hence sees little value in maintaining such a rule. See Alexander & Sherwin, Demystifying, supra note 1, at 41; Schauer, Playing by the Rules, supra note 2, at 190–196. Whether this argument is convincing is outside the scope of this piece.

23. Note that this is does not entail thinking that applying the rule is not justified by systematic reasons about the legal system. Suppose a judge has, as precedential constraint requires, judged that the reasons about the particular case favor not applying the rule. Further, she has not thought at all about systematic reasons favoring applying the rule but nonetheless applies the rule. Then we can say, as Schauer does, that she decided to apply the rule while believing that is the wrong decision. After all, she has recognized reasons for not applying the rule and has not recognized any reasons to the contrary.

24. See Alexander & Prakash, supra note 19; Dennett, Daniel, The Interpretation of Texts, People and Other Artifacts, 50 Phil. & Phenomenological Res. 177 (1990)CrossRefGoogle Scholar.

25. See Ludwig Wittgenstein, Philosophical Investigations (1953).

26. Alexander and Sherwin take this as an implication of a rule-based view. One might think that a rule-based theory could identify distinguishing as special, limited type of overruling that involved constraints on the content of the new rule. See, e.g., Joseph Raz, The Authority of Law (1979), at 186–187. Alexander and Sherwin argue against this, claiming that the constraints involved would be illusory; for any rule that fails the constraints, a judge can formulate an equivalent one that meets the constraints. Alexander & Sherwin, Demystifying, supra note 1, at 84–86. Whether the argument is convincing is outside the scope of this paper.

27. See Thomas F. Hogan, The Federal Court System: An Introduction for Judges and Judicial Administrators in Other Countries, 22–23 (2d ed. 2010), available at www.uscourts.gov/uscourts/FederalCourts/Publications/English.pdf, stating, “A basic feature of the common law is the doctrine of “precedent.”

28. See Schauer, Playing by the Rules, supra note 2; Lamond, Precedent and Analogy, supra note 8; Perry, Steven, Two Models of Legal Principles, 82 Iowa L. Rev. 787 (1997)Google Scholar.

29. Alexander & Sherwin, Demystifying, supra note 1, at 114.

30. This criticism is not new. See, e.g., Lamond, Grant, Do Precedents Create Rules?, 11 Legal Theory 1 (2005)CrossRefGoogle Scholar.

31. This follows Alexander & Sherwin, Demystifying, supra note 1, at 64–65. Note that this categorizes a number of theories as “analogical” that do not intuitively seem analogical, such as Horty, Result Model, supra note 16; and Raz, supra note 26. For Alexander and Sherwin, “analogical theories” are all theories that attempt to explain the practice of distinguishing, except for those that use Dworkinian legal principles. Alexander & Sherwin, Demystifying, supra note 1, at 64–65, 88–89.

32. See Alexander & Sherwin, Demystifying, supra note 1, at 64–88; Schauer, Why Precedent, supra note 5.

33. The assumption of only one precedential case is unrealistic, but it helps make the critique clear.

34. See Brewer, supra note 16; Lee, Hee Seung & Holyoak, Keith J., Causal Models Guide Analogical Inference, in Proceedings of the Twenty-ninth Annual Conference of the Cognitive Science Society 1205 (McNamara, D.S. & Trafton, G. eds., 2007)Google Scholar, for impositions of criteria for relevant similarities. Brewer takes relevance to follow from the pragmatic goals that a judge has in making a decision and the requirement of an analogy warranting rationale for treating the similarities as justifying the extrapolation. Lee and Holyoak, writing on analogical reasoning in general, likewise recognize that the question the reasoner is trying to answer by analogy will influence which “mappings”—pairs of similarities—are relevant.

35. You can collapse these two by assigning a similarity of degree zero to any pair of irrelevant features. More importantly, you can think of relevance as a matter of degree as well. Hence you could multiply the degree of similarity by the degree of relevance to get a measure of relevant similarity.

36. There could be one master metric that assigns a degree of similarity to a pair composed of a context and a pair of features or multiple metrics that assign a degree of similarity to pair of features with the choice among the metrics determined by context. The two are equivalent for my purposes.

37. This follows the strategies found in the psychological literature on analogy. See Holyoak, Keith J., Analogy, in The Cambridge Handbook of Thinking and Reasoning 117, 134–135 (Holyoak, Keith J. & Morris, Robert G. Jr. eds., 2005)Google Scholar, which ranks mappings between a target and a single or multiple sources by how many constraints, such as similarity, structure, and purpose, the mapping satisfies. See also Falkenhainer, Brianet al., The Structure-Mapping Engine: Algorithm and Examples, 41 Artificial Intelligence 1 (1989)CrossRefGoogle Scholar, which uses a structural mapping engine that ranks relations such as “cause(x,y)” and “occupy(x,y)” and then favors mappings that include correspondences between higher-order rankings.

38. She may rule for Betty only if she overrules the past precedent, makes a mistake, or intentionally deviates from common-law practice.

39. See Alexander & Sherwin, Demystifying, supra note 1, at 64–88; Schauer, Why Precedent, supra note 5.

40. See Schauer, Why Precedent, supra note 5.

41. Schauer puts it in terms of a choice of a source, but in the context of this paper I think the critique is best understood as dealing with the choice of the metric. See id. In the legal context, there is only a finite number of potential sources because there is only a finite number of prior cases in the jurisdiction. Further, most of these cases will be immediately excluded as irrelevant by the metric; e.g., a felony murder case is not going to be relevant to Betty's nuisance claim.

42. This example is based on one found in Holyoak, supra note 37, at 125–127.

43. See Haidt, Jonathan, The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment, 108 Psychol. Rev. 814 (2001)CrossRefGoogle ScholarPubMed, which argues that most moral reasoning is a post hoc justification of intuitions.

44. “Selection” is perspicuous here, but I do not want to suggest that the selection of a similarity metric is a consciously directed process. It is not as if the reasoner must have a bunch of metrics in mind and then thinks, “I pick that one.”

45. Schauer, Why Precedent, supra note 5, at 458.

46. It is an instance of acrasia but likely not of weakness of the will. See Holton, Richard, Intention and Weakness of Will, 96 J. Phil. 241 (1999)CrossRefGoogle Scholar (addressing the distinction between acrasia and weakness of the will).

47. Alexander & Sherwin, Demystifying, supra note 1, at 18; Schauer, Why Precedent, supra note 5, at 459–460.

48. So does Schauer, Why Precedent, supra note 5, at 459–460.

49. Of course, if anything goes, and there is no distinction between good and bad metrics, then the choice of metric is arbitrary. But this is not Schauer's objection, since there is no need to worry about bias if a decision is arbitrary.

50. Alexander & Sherwin, Demystifying, supra note 1, at 68–88.

51. Id. at 81.

52. They argue that a third option, a Dworkinian extraction of the principles that best cohere with the past decisions, will not yield genuine constraint because any weighing of the principles is permissible and any result can be reached with the right weighing. I disagree, but that is outside my project here.

53. Id. at 170–171.

54. A fully fleshed-out analogical theory has to specify whether the principles are derived from moral reasoning or past cases or some other source, but nothing about analogy compels selecting one of these source rather than another.

55. Id. at 10 n.3, quoting Haidt, supra note 43, at 818.

56. Alexander & Sherwin, Demystifying, supra note 1, at 72. See Quartz, Steven R., Reason, Emotion, and Decision-Making: Risk and Reward Computation with Feeling, 13 Trends in Cognitive Sci. 209 (2009)CrossRefGoogle ScholarPubMed, for a selection of the psychological literature suggesting that this is how some intuitive processes seem to work.

57. Haidt, supra note 43, at 818.

58. Alexander & Sherwin, Demystifying, supra note 1, at 73–74.

59. See Fine, Cordelia, Is the Emotional Dog Wagging Its Rational Tail, or Chasing It?, 9 Phil. Explorations 83 (2006)CrossRefGoogle Scholar.

60. Alexander & Sherwin, Demystifying, supra note 1, at 75–76.

61. Id. at 74.

62. Id. at 74–76.

63. See Greenwald, Anthony G. & Banaji, Mahzarin R., Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 Psychol. Rev. 4 (1995)CrossRefGoogle ScholarPubMed, for the seminal work. The National Center for State Courts offers a summary of current research. See Helping Courts Address Implicit Bias: Frequently Asked Questions, National Center for State Courts (2012), http://www.ncsc.org/~/media/Files/PDF/Topics/GenderandRacialFairness/ImplicitBiasFAQsrev.pdf.

64. See Rooth, Dan-Olof, Automatic Associations and Discrimination in Hiring: Real World Evidence, 17 Lab. Econ. 523 (2010)CrossRefGoogle Scholar.

65. Alexander & Sherwin, Demystifying, supra note 1, at 75–76.

66. Id.

67. I am assuming, contrary to fact, that the process underlying tracking a flyball is unarticulable. See McBeth, Michael K. & Shaffer, Dennis M., Baseball Outfielders Maintain a Linear Optical Trajectory When Tracking Uncatchable Fly Balls, 28 J. Experimental Psychol.: Hum. Perception & Performance 335 (2002)Google Scholar.

68. This is not to suggest there is no single right method to catch a baseball or a single correct metric. The argument is unchanged as long as some methods and metrics are ruled out.

69. See Nelson Goodman, Fact, Fiction, and Forecast (4th ed. 1983), at 74.

70. See Saul Kripke, Wittgenstein on Rules and Private Language: An Elementary Exposition (1982).

71. Alexander & Sherwin, Demystifying, supra note 1, at 161. I think this conclusion is neither correct nor universally drawn, but that is beside the point. See Allan F. Gibbard, Meaning and Normativity (2012); Ted Sider, Writing the Book of the World (2011), at 21–44; and Lewis, David K., New Work for a Theory of Universals, 61 Austl. J. Phil. 343 (1983)CrossRefGoogle Scholar, for more convincing responses. Should Alexander and Sherwin reverse course and adopt one of these approaches that I favor, their argument against analogy would be made more consistent, as rule extraction would not bottom out in knowing how. Still, their argument would not be convincing. I argue supra in Section V that even purely intuitive analogy can still meet the normative requirements posited by Alexander and Sherwin. Moreover, the supposition that analogy must be understood as knowing how is granted only for the sake of argument. I think it can be characterized using knowing that. See the references at supra notes 34 and 37.

72. Alexander & Sherwin, Demystifying, supra note 1, at 149.

73. David K. Lewis, Counterfactuals (1973).

74. Robert C. Stalnaker, Context and Content (1999).

75. In fact, the notion of “relevance” that Alexander and Sherwin find so troubling with respect to analogical reasoning lies at the heart of pragmatics, from the seminal work of Grice to contemporary accounts such as Roberts's that treats relevance to the question under discussion as an important constraint on interpretation; see Grice, H. Paul, Logic and Conversation, in The Logic of Grammar 64 (Davidson, Donald & Harman, Gilbert eds., 1975)Google Scholar; Roberts, Craige, Information Structure in Discourse: Towards an Integrated Formal Theory of Pragmatics, 49 Ohio St. U. Working Papers in Linguistics 91 (1996)Google Scholar; Craige Roberts, Solving for Interpretation (2011), available at http://www.ling.ohio-state.edu/~croberts/Solving_for_interpretation.Oslo.paper.pdf. This should not come as a surprise. From the lofty philosophical heights of various paradoxes of meaning to more mundane issues of anaphora resolution, language interpretation faces the same difficulty as analogical reasoning: a host of meanings (for language) or mappings (for analogy) is possible, and we need to (and often do) pick just one.

76. Alexander & Sherwin, Demystifying, supra note 1, at 80–87.

77. Usually this premise is replaced by the stronger premise that between any two cases there are infinitely many factual differences. See Schauer, Why Precedent, supra note 5. I use the weaker claim because it is all that validity requires.

78. Raz, supra note 26, at 186–188.

79. Alexander & Sherwin, Demystifying, supra note 1, at 85–87.

80. One might suspect that relevant similarities are just the same as reasons, in which case we are just shifting to a more familiar vocabulary. Others might suspect that the shift to reasons is more substantial. Either way, both types of theories are “analogical,” according to the definition adopted supra at Section II from Alexander and Sherwin. Hence what follows is an example of analogical response to the criticism.

81. See Ashley, Kevin D., Reasoning with Cases and Hypotheticals in HYPO, 34 Int'l J. Man-Machine Stud. 753 (1991)CrossRefGoogle Scholar; Horty, John F., Rules and Reasons in the Theory of Precedent, 17 Legal Theory 1 (2011)CrossRefGoogle Scholar; Lamond, Do Precedents, supra note 30.

82. This sketch is a simplified version of the accounts of Horty and Lamond. See Horty, Rules and Reasons, supra note 81; Lamond, Do Precedents, supra note 30.

83. Horty's more recent work, Horty, Rules and Reasons, supra note 81, allows the extraction of rules that do not involve all the reasons for the prevailing party, contra Horty, Results Model, supra note 16. This distinction is not relevant for this sketch.

84. Alexander & Sherwin, Demystifying, supra note 1, at 83.

85. See supra at Section V.

86. See Thomas M. Scanlon, What We Owe Each Other (1998); Arkonovich, Steven, Defending Desire: Scanlon's Anti-Humeanism, 63 Philosophy and Phenomenological Research 499, 499–519 (2001)CrossRefGoogle Scholar.

87. Perhaps one considers only the “most relevant” reasons in some sense—there may be hundreds of reasons at issue in when I decide what pants to wear, but a decision must be made before I am late for work. Still, the point here remains: the identification of relevant reasons precedes judgment.

88. Note that this involves the judge genuinely taking the novel fact to be a reason, and the worry is that this will inevitably happen if she finds the precedent unfavorable. A more devious post hoc strategy may be employed by the judge, wherein she uses the novel fact to distinguish the cases despite not thinking the fact is actually a reason for the party she favors. Similar sorts of deception are available under a rule-theorist picture, wherein the judge employs disingenuous semantic claims. Neither I nor the rule theorists are interested in giving an account of these sorts of reasoning.

89. See Haidt, supra note 43, indicating that using reason to create post hoc justifications for an intuited conclusion is fairly common.

90. See id.

91. Supra at Section VI.

92. Discussed supra at Section VI.