Exemplary reasoning: Semantics, pragmatics, and the rational force of legal argument by analogy

Reasoning by analogy is one of the most frequently used techniques of legal argument. In this Article, Professor Brewer presents a detailed model of that reasoning process. With its focus on the special features of analogies that are offered as justificatory arguments, Professor Brewer's model provides clear criteria that lawyers, judges, students, and scholars can use critically to assess any given argument by analogy. Moreover, challenging a widely held view, Professor Brewer uses this model to argue that legal reasoning by analogy, like analogical argument in logic, mathematics, and the natural sciences, can have a great deal of rational force when properly executed. He explains that reasoning by analogy is a three-step rule-guided process that legal reasoners typically deploy when they are in doubt about the scope of a legal concept or rule and want to use ale analysis of examples to help resolve that doubt. The three-step process consists of an inference (of the type known as ''abduction'') from chosen examples to a rule that could resolve the doubt; confirmation or disconfirmation, by a process of reflective adjustment, of the rule thus inferred; and application of the confirmed rule to the case that occasioned the doubt. Professor Brewer also highlights the interpretive criteria that readers of analogical arguments should use in trying to understand their exact structure and content. He maintains, for example, that analogical arguments offered by judges who endorse certain widely shaved rule of law values should presumptively be interpreted as relying in a special way on deductively applicable rules within the broader three-step analogical reasoning process; His discussion locates issues regarding the proper interpretation of legal analogies within broader jurisprudential debates over the extent to which legal arguments can, do, and should satisfy rule of law values.