Frederick Schauer and Barbara A. Spellman (University of Virginia School of Law and University of Virginia School of Law) has posted Analogy, Expertise, and Experience (University of Chicago Law Review, Vol. 84, No. 1, 2017) on SSRN. Here is the abstract:
Traditional legal perspectives on analogical reasoning in law posit that legal reasoning involves the initial step of recognizing a similarity between the facts of some previous case and the facts of the instant case. And the recently widespread skeptical views about analogical reasoning in law see the claims for analogical reasoning as little more than a mask for unacknowledged judicial lawmaking. Against both of these views, we argue that analogical reasoning, in law and elsewhere, involves an initial perception of similarity, but a perception that is based on knowledge, experience, training, and possibly the expertise of the person drawing the analogy. As a result, analogical reasoning in law differs from simple rulemaking or lawmaking, but still embodies the categories embedded in the distinctively legal knowledge and experience that lawyers and judges bring to bear on the process of analogical reasoning.