Comments on: Analogies http://madisonian.net/2006/05/01/analogies/ a blog about law, tech, culture, and related things Sat, 11 Feb 2012 02:59:42 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: Joe Miller http://madisonian.net/2006/05/01/analogies/comment-page-1/#comment-22974 Joe Miller Tue, 02 May 2006 05:12:14 +0000 http://madisonian.net/?p=632#comment-22974 Having poked around a bit this evening, I can suggest that if you're interested in this thread, you may enjoy taking a look at Judge Posner's "Judges' Writing Styles (and Do They Matter?)," 62 University of Chicago Law Review 1421 (1995); and "Pragmatic Adjudication," 18 Cardozo Law Review 1 (1996). Having poked around a bit this evening, I can suggest that if you’re interested in this thread, you may enjoy taking a look at Judge Posner’s “Judges’ Writing Styles (and Do They Matter?),” 62 University of Chicago Law Review 1421 (1995); and “Pragmatic Adjudication,” 18 Cardozo Law Review 1 (1996).

]]> By: MT http://madisonian.net/2006/05/01/analogies/comment-page-1/#comment-22952 MT Tue, 02 May 2006 03:20:19 +0000 http://madisonian.net/?p=632#comment-22952 I like the invocation of "public palatability." I tend to think of judicial opinions as just a wordy category of crowd control. I like the invocation of “public palatability.” I tend to think of judicial opinions as just a wordy category of crowd control.

]]> By: Joe Miller http://madisonian.net/2006/05/01/analogies/comment-page-1/#comment-22923 Joe Miller Tue, 02 May 2006 00:43:22 +0000 http://madisonian.net/?p=632#comment-22923 You ask, "in what sense is the talking not part of the doing?" I haven't read Weinreb, or Posner on Weinreb, or Patry on Posner on Weinreb. But I know, from other of Judge Posner's writings, that he has written opinions (the talking) that do not report his actual reasons (at least, not the most important, or weighty, or persuasive reasons) for holding as he does in a given case (the doing). My vague recollection is that he views the U.S. Supreme Court's decision in Bush v. Gore as being a prime example of the at-least-somewhat-fake-public-reasons phenomenon. How often does Posner write such partial (or total) counterfeit opinions? Who knows? Who can know? (Perhaps even he forgets, after a time.) I agree that justifying is an inescapable part of what <i>judges do</i> (although not juries or legislatures, and usually not executives). I think, too, that Judge Posner is adding an additional step beyond private justification - namely, (what he might call) publicly palatable justification. Having added that step, it is easy enough to separate the talking from the doing. You ask, “in what sense is the talking not part of the doing?” I haven’t read Weinreb, or Posner on Weinreb, or Patry on Posner on Weinreb. But I know, from other of Judge Posner’s writings, that he has written opinions (the talking) that do not report his actual reasons (at least, not the most important, or weighty, or persuasive reasons) for holding as he does in a given case (the doing). My vague recollection is that he views the U.S. Supreme Court’s decision in Bush v. Gore as being a prime example of the at-least-somewhat-fake-public-reasons phenomenon. How often does Posner write such partial (or total) counterfeit opinions? Who knows? Who can know? (Perhaps even he forgets, after a time.)

I agree that justifying is an inescapable part of what judges do (although not juries or legislatures, and usually not executives). I think, too, that Judge Posner is adding an additional step beyond private justification – namely, (what he might call) publicly palatable justification. Having added that step, it is easy enough to separate the talking from the doing.

]]> By: MT http://madisonian.net/2006/05/01/analogies/comment-page-1/#comment-22914 MT Mon, 01 May 2006 22:51:05 +0000 http://madisonian.net/?p=632#comment-22914 If as a judge you have a large universe of plausible analogies from which to draw and no very clear winner--which I think is liable to be a common circumstance--then to my mind you're probably not reasoning by analogy. I suspect judicial tradition (i.e. something different than precedent) narrows the effective breadth of the universe, because analogies or styles of analogizing are bound to gain legitimacy with use, which would cause the unused ones to fade into the background, at least for the conservative judicial reasoner. The fewer and less diverse your options for analogy, the more your conclusion looks to have been decided by the strength of an analogy...it stands to reason. But more than shopping the universe of analogies, I imagine a judge shops a universe of styles of reasoning or understanding, and then goes analogical if it strikes him or her that the nicest of all explanations is to be found in the analogical universe. Just some naive hunches. I haven't deeply assimilated a lot of opinions. If as a judge you have a large universe of plausible analogies from which to draw and no very clear winner–which I think is liable to be a common circumstance–then to my mind you’re probably not reasoning by analogy. I suspect judicial tradition (i.e. something different than precedent) narrows the effective breadth of the universe, because analogies or styles of analogizing are bound to gain legitimacy with use, which would cause the unused ones to fade into the background, at least for the conservative judicial reasoner. The fewer and less diverse your options for analogy, the more your conclusion looks to have been decided by the strength of an analogy…it stands to reason. But more than shopping the universe of analogies, I imagine a judge shops a universe of styles of reasoning or understanding, and then goes analogical if it strikes him or her that the nicest of all explanations is to be found in the analogical universe. Just some naive hunches. I haven’t deeply assimilated a lot of opinions.

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