Brian Larson (Texas A&M University School of Law) has posted Law's Enterprise: Argumentation Schemes & Legal Analogy on SSRN. Here is the abstract:
Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Entries in the debate over the last 25 years by Sunstein, Schauer, Brewer, Weinreb, and others leave us at an aporia about how to view it. The skeptics are too focused on the rational force offered by the deductive syllogism when they should attend to the kinds of arguments that can provide premises for deduction — exactly the work that legal analogy does. The mystics on the other hand expect us to accept legal analogy without an account of how to discipline it — an account of the conventions that make it acceptable to lawyers and judges. Argument by legal analogy happens every day, lawyers need to know how to construct and critique such arguments, and law schools also need to know how to teach these skills to law students. This article provides a normative and productive theory for creating and evaluating arguments by legal analogy. Using the argumentation schemes and critical questions of informal logic, it constructs a theory grounded in philosophy but kitted out for action. Not skeptic or mystic, it is dynamic.