We’ve just read Frederick Schauer’s review of Randy Kozel’s excellent book “Settled Versus Right: A Theory of Precedent,” Cambridge University Press, 2017. (Schauer’s paper is provocatively titled “On treating unalike cases alike” and is posted on SSRN here. Hat tip: Larry Solum. As an aside, our own review of Kozel is available via SSRN here.) So, before we conclude our review of Ron Allen and Mike Pardo’s relative plausibility paper, we want to highlight one of our favorite passages from Professor Schauer’s review:
… precedential constraint … is not about treating like cases as alike. On the contrary, precedential constraint is about treating cases that are somewhat alike and somewhat different as being alike for purposes of precedential constraint. It is about treating the similarities as relevant and the differences as irrelevant, and about deciding which similarities matter and which do not. Thus, identifying what is a precedent for what is about attributing or ascribing likeness; and it is not about discovering, locating, or unearthing likeness. Determining precedential similarity … entails the question of what a decision-maker in the instant case deems to be similar, and not about what is actually similar in some deeper ontological sense.
Professor Schauer’s powerful critique of Aristotle’s axiom (see image below) is also worth noting. In fact, Schauer begins his review of Kozel thus: “Perhaps we should blame Aristotle. In his enduring discussion of justice in the Nicomachean Ethics, Aristotle offered the now-ubiquitous maxim that like cases should be treated alike” (footnote omitted). Despite the intuitive appeal of Aristotle’s axiom, Schauer frankly acknowledges “the almost complete emptiness of the ‘treat like cases alike’ maxim.” Why is this celebrated maxim empty, a mere tautology? Because as Schauer correctly notes, “Given that any two items in the world share some but not all of the properties of the respective items, any two items can be deemed alike in some respects and unalike in others, thus making the mere idea of likeness or unlikeness singularly unhelpful.” In short, we need some independent criterion of likeness “to make the maxim anything other than a largely useless tautology.”
So, what criterion (or criteria) should judges use when deciding whether two unalike cases are sufficiently similar to be treated alike? That is the $64 question, and your guess or theory is as good mine!