On his Legal Theory blog, Larry Solum recently highly recommend a piece by Frederick Schauer & Barbara A. Spellman, Precedent and Similarity, forthcoming in T. Endicott, H. Kristjansson & S. Lewis (eds), Philosophical Foundations of Precedent (Oxford University Press). The piece describes a problem endemic in legal reasoning—the difficulty of establishing just what makes one thing similar enough to another to justify an analogy. It uses research in cognitive psychology to map how individuals carry out this task. And in doing so, it sheds light on what consequences we might expect to follow from a Supreme Court ruling that adopts a Second Amendment test requiring application of text, history, tradition, and analogies from those sources.
In the article, Schauer and Spellman unpack the concept of precedent to explore the question of what makes one case relevantly similar to another. In answering this question, they underscore that “similarity is necessarily a function of which properties we take to be germane and which we can safely ignore.” They explore a number of traditional and modern theories for what makes one case relevantly similar, including the Realist challenge that makes relevant similarly simply an ascriptive (not descriptive) attribute that a judge imposes on a prior case based on extra-legal policy considerations in an essentially post-hoc manner. In other words, a judge figures out how she wants the instant case to come out and then finds past cases to justify that conclusion and ascribes similarity to the factors that help make it so.
Schauer and Spellman do not necessarily reject the Realist account, but they note that in many cases judges may not have strong policy reasons for wanting A to prevail over B. In those cases, judges still make assessments of relevant similarity. Schauer and Spellman describe an account they call “Cognitive Realism,” which “suggest[s] that the determination of relevant similarity would be made on the basis of the judge’s non-policy (and non-particular-outcome) preferences, but nevertheless on pre-legal or extra-legal perceptions about which pairs of acts or events are similar and which are different in which circumstances.” In some sense, write Schauer and Spellman, judges (and people more generally confronted with questions of similarity) just see relevant similarity. Individuals do not primarily (contra the Realists) have a result or consequence in mind and pick out a relevant similarity to justify it. Rather, they tend to make these perceptions directly. Thus, “the central claim here is that those perceptions, no less real, are substantially a function of the informational and experiential background (and baggage) that perceiver brings to the task of perceiving the existence o[r] non-existence of similarity.” Background, culture, and experience make a world of difference in how individuals—including judges—perceive one thing to be similar to another. As Schauer and Spellman conclude, “[t]he principal message here is that in going from particular to particular, judges are influenced by their own backgrounds, training, and experience and not only by their conscious views about which party ought to win or which policy it would be best for the legal system to adopt.”
This understanding of how judges perceive relevant similarly has implications for the ascendant proposal among conservative judges and justices that Second Amendment claims should be evaluated using text, history, tradition, and analogies thereto. Justice Brett Kavanaugh, when he was a judge on the D.C. Circuit, explained how he saw the test of text, history, and tradition fleshing out—and was emphatic about the role of analogy. In that Heller II dissent, he first explained that courts should uphold only those laws that have a basis in text, history, and tradition. He went on to explain that that would not imperil all modern laws, however, because “in such cases, the proper interpretive approach is to reason by analogy from history and tradition.” In applying his test in that case, then-Judge Kavanaugh found no analogy—no relevant similarly—between the challenged D.C. law requiring the registration of residents’ guns and either (1) historical licensing laws that required gun owners to secure a license to have or carry guns or (2) laws requiring gun stores to register their gun sales. As he said on the latter front, it is “important at the outset to distinguish registration requirements imposed on gun owners from record-keeping requirements imposed on gun sellers.” Though important, he did not explain why those two record-keeping requirements are sufficiently different.
It seems likely that—as with Justice Kavanaugh’s notion of registration requirements—in some not-insignificant number of cases, text, history, and tradition won’t lead to an answer, and the judge’s sense of analogy—of what is relevantly similar to what—will be doing the bulk of the work. Joseph and Eric Ruben explained it this way:
Is a rocket launcher like a musket, because you can lift it, or is it like a cannon, because it’s so powerful? How is an AR-15 like a musket? Do you compare barrel lengths? Muzzle velocity? Relative deadliness? Such questions place a lot of weight on judges’ own, perhaps unexamined intuitions. In this way, the test of text, history and tradition simply cloaks judicial discretion in an air of objectivity.
What they call the Kavanaugh-inspired “test of judicial analogies” is likely to expand rather than constrict judicial discretion. The results may, as the Realists suggested, often come down to ascribing similarities (or dissimilarities) to scenarios that get a judge to her preferred policy outcome. But even in other cases, as Schauer and Spellman argue, judges will be making similarity-perceptions based on pre- and extra-legal considerations that are tied to their background, life experiences, and acculturation. “[P]eople with certain types of backgrounds and experiences will perceive, from the virtually unlimited universe of similarities and differences between two acts, events, or situations, those that others with different backgrounds and experiences will not notice at all.” A test of text, history, tradition, and analogy will thus largely make the Second Amendment inquiry into an idiosyncratic one that depends, if not exactly on what the judge ate for breakfast, then at least maybe on where she ate it and with whom. Given the role of background and experience in these decisions, it is likely to lead different judges in different parts of the country to different conclusions on issues of vast nationwide importance.