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Law in the Age of Pluralism$
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Andrei Marmor

Print publication date: 2007

Print ISBN-13: 9780195338478

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195338478.001.0001

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Should Like Cases Be Treated Alike?

Should Like Cases Be Treated Alike?

(p.183) CHAPTER 7 Should Like Cases Be Treated Alike?
Law in the Age of Pluralism

Andrei Marmor (Contributor Webpage)

Oxford University Press

This chapter deals with an example of a normative dilemma that judges may face in common-law adjudication: Are there any good reasons to treat previous judicial decisions as legally binding in similar cases, just because they are similar, even if the underlying reasons for the previous decisions underdetermine the result? This is the relevant question raised by the principle of “treating like cases alike”. There are two possible rationales that may justify an affirmative answer: the principle that justice should be seen to be done, and the principle of protected expectations. Both answers are criticized as overinclusive and only partly defensible. The chapter concludes with a suggestion that there are two modes of analogical reasoning in adjudication, and that one of them may rationalize one type of cases in which like cases should be treated alike.

Keywords:   common law adjudication, justice, protected expectations

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