Both structures, and the way that conclusions are

Both Alexander and Sunstein developed
models of reasoning that have been applied to the legal system and legal
reasoning. Although their argument structures, and the way that conclusions are
reached are quite different, there are parts of each of their models that are
also complimentary. In this paper I will spell out how each of Alexander’s
models of precedent is supposed to work, and how Sunstein’s model of analogical
reasoning is supposed to work. This paper will also attempt to apply Alexanders
critiques of the models of precedent to the analogical reasoning model, and
rebuttals to those critiques based on Sunstein’s view. I will then present the argument
with evidence that Alexander’s Natural Model of Precedent and Sunstein’s
analogical reasoning model are the most similar of the three models of precedent
that Alexander provides, and offer the potential dissentions to my stance. To
support my argument, I will be using the text provided in class “Analogical
Reasoning”, “Constrained by Precedent”, and “Reasoning from Precedent”, in
addition to those I will be using the articles, “A Defense of Analogical Reasoning
in Law” by Emily Sherwin, “The Result Model of Precedent” by John F. Horty, and
“Precedent and Analogy in Legal Reasoning” from the Stanford Encyclopedia of Philosophy.

            Larry
Alexander provides three models on precedential constraint, The Natural Model
of Precedent, The Rule Model of Precedent, and The Pure Result Model of
Precedent. He believes these three models to be thorough and exhaustive of the
possibilities on precedential constraint. These models differ from previous
text on precedent because “Much of the theoretical literature on the topic of
precedent is concerned either with justifying the practice or with undermining
these attempts at justification, but there is also a more fundamental question
concerning the nature of the practice itself. How is it, exactly, that
precedents constrain future decisions? What is the mechanism of constraint?” This
is what Alexander attempts to answer by providing these three models. And,
though he endorses one of his own models and argues against the other two, each
of the models has its merits and disadvantages.

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The Natural Model
of Precedent “holds that when deciding a case, a court should give prior
decisions the weight they carry independently of any formal requirements that
precedent be followed.” Theses decisions can be thought of as “ordinary events in
the natural world.” As with other events that occur in the natural world these
decisions could play a part in the reasoning for some courts attempt at a specific
decision for a case, and such weight should be given to those decisions, but
that is at its full extent The Natural Model. A court can look at a previous
event, apply a certain amount of credence to that decision and factor it into
the decision-making process for or against a side. Once this decision has been
made in the precedent case, the decisions existence can then potentially serve
as an “independent reason” in following cases to aid in their decision-making
process. The decisions in The Natural Model for future cases are supposed to be
treated as merely additional reasons for or against the current decision in the
present case. The basis for these decisions being treated as additional reasons
are equality, and reliance. Courts always attempt to and “place a high value on
similar treatment of similar cases” so it is important to ensure that similar
cases that are based on similar relevant events and decisions are treated as
equally as possible given the relevant circumstances. Further, if it cannot be
relied upon that similar cases will be treated in similar ways that then weakens
the common law system, which dictates that, “it is unfair to treat similar
facts differently on different occasions.”

The Rule Model of
Precedent, which is the model that Alexander endorses, states that the precedent
setting court has the authority to decide the case before it and to also create
a “general rule” that binds future cases to be decided in a similar fashion. This
basically allows the rule to act as a statute. Identifying the precedent rule
must always meet these three conditions: “The rule must have canonical formulation,
the rule must be treated as separate from the reasoning of the court that led
to its adoption, and the formulation of the rule must be fixed at the time of
the precedent decision.” According to Horty in this model, “Constraint by Precedent
is just Constraint by Rule; a constrained court must apply the rules of precedent
cases in reaching current decisions.” This model of precedent is narrow in the
fact that “When the antecedent of a rule applies to the current case, a
constrained court then only has two choices: it can either accept the rule’s
consequent as the outcome of the case, thereby following the rule, or else it
can overrule the precedent.” The court when following the rule model of precedent
does not have the luxury of taking bits and pieces of the rule, tapering in on
parts of the rule that apply, or differentiating the case being decided from
the precedent. This would diverge from the rule model and make it more like The
Pure Result Model, which will be discussed further into the paper. The Rule Model
varies along two dimensions, strength of the constraints and method of identifying
the precedent rule. In some cases, the constraint is held as absolute that
being like the strength of a statute in others the constraint could be
considered weaker, but in no case, is the rule allowed to be overlooked. As far
as identifying the precedent rule some versions look to the canonical formula,
while others look at the steps in which the court that set the precedent used
to formulate a decision. In either case the deciding court at the time must
apply the precedent setting rule to the current case.

The Pure Result
Model of Precedent argues that, “when deciding a case, a court must decide in
favor of the party that is analogous to the winner in the precedent case, if
the current case is as strong or stronger a case for that result than the precedent
case was for its result.”  This is to say
that even with other factors that could be involved in the current case, if the
precedent setting decision that is involved in the current case is as strong or
stronger than it was in the original case, that case should favor the winning
party of the precedent setting case. This is different from The Natural Model
of Precedent in that within that model the precedent from the original case is
merely treated as an individual decision that is factored into the decision, but
its weight does not necessarily mean it will be decided in favor of the
precedent setting case. And, it differs from The Rule Model in that no matter
what in this model if the precedent is set and a rule is made based on the
precedent it should be followed in all proceeding cases not matters its strength
or weakness, whereas in the pure result model if the precedent setting case is
not seen as of equal strength or stronger than the original case it can be
dissented against. One of the major issues that arises with The Pure Result
Model is that the current deciding court must be able to review the facts of
the precedent setting case that have weight on the current cases decision.
There are two ways in which these facts are gathered, the voluminous approach,
and the spare approach. In the voluminous approach generally, a court will
recount most all the information presented in the precedent setting case with
no regard to rather they affect the current case being decided or not. On the
other had with the spare approach the court will recount the comprehensive precedent
that is being used and utilize the facts only of which apply to the precedent.

These three models
represent Alexander’s Models of Precedent. Each of three is problematic in some
shape or form, and each three also has strengths that make them useful in legal
decision making. Alexander favors the Rule Model of Precedent in my opinion because
he believes that the rule model provides the most reliability and consistency
over time, in that once the rule has been made by the precedent setting court
it should be followed by all proceeding courts. This issue with this rule is, what
if the original court is incorrect in the decision that way made? In either way
Alexanders Model of Precedent provides a strong contribution to legal reasoning
and decision making.