Presenters: Dr. An Hertogen (University of Auckland Waipapa Taumata Rau); Dr. Joe Blass (Northwestern University); Prof. Fred Schauer (University of Virginia)
Chair and Discussant: David G. Kamper (Univerity of California, Los Angeles)
00:00 - David G. Kamper -- Introduction
03:11 - Dr. An Hertogen -- The Persuasiveness of Domestic Law Analogies in International Law
26:02 - Dr. Joe Blass -- Extracting and Applying Legal Rules from Precedents
49:39 - Prof. Frederick Schauer -- Analogy and Common Law Reasoning: Of Guns and Houseboats
Presentations
The Persuasiveness of Domestic Law Analogies in International Law
Dr. An Hertogen, University of Auckland Waipapa Taumata Rau
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.
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.
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.