Sorry to have posted in two diff. places. I figured at the time that off-topic might be more appropriate.
Re unoriginal and similarity to legal realism, I'll repeat what I said in reply to the exact same charge in the other post:
cogito wrote:The realists claimed the law was often indeterminate and decisions did not actually follow deductively from a set of rules, that judges lean rather heavily on facts rather than rules. I'm trying to make a stronger claim, that not only are decisions not a deductive science, but that stare decisis analysis of facts is essentially a counterproductive proxy for underlying policy considerations. When a judge says a pistol is similar enough to a knife to extend the holding of a knife case to the pistol case, the similarity she is identifying is not b/w pistols and knives but b/w the policy goals in those cases.
Now, I wish at this point someone would say something critical like "but that's two ways of getting at the same result" or something along these lines. That would be a fair point, and in a way it highlights exactly what I want to show. Doing a policy analysis in fact terms often leads to the same result, but the heart of the reasoning is unnecessarily camouflaged and distorted. A tortured, pseudo-objective factual analysis leaves the real substance of precedent, policy precedent, hidden, only to be sometimes discovered by a chance statement of policy in the opinion when the judge is really on the ropes.
Re old cases, Hammer and Darby are very important, well-known cases. What I want to say has to do with the logical foundation of stare decisis reasoning, and to make such a point I could theoretically go back to old English common law cases. But your point is well taken nonetheless. I do see that analyzing a more recent line of cases may have some more rhetorical punch to it. I appreciate the comment.
Re underdeveloped and poorly written, I absolutely concede that there is room for improvement in both these areas. But please, you gotta understand, a thread post on TLS forums, and one that says "this 1L's theory" in the title, is not intended to be taken as a submission to the Harvard Law Review ed board. I don't know if it's insecurity, or low self-esteem LS students making themselves feel big in a faceless forum, but your snarks are over the top and, honestly, kinda pathetic.
I wrote this as a 1L to try to make sense of what seemed like a senseless doctrine. I was reminded of the idea recently when reading a case for conlawII and realized I never received any solid counterarg. Decided to post it on TLS (prob. a mistake) to see if someone could help point out gaps in my argument. I have yet to receive any really solid constructive criticism. If you don't want to read through the essay, I can give you an absolute skeletal version:
assume: case X, which has been decided, is diff. but similar to case X', which is now before a judge
P1: judges' job is to decide whether to extend or distinguish X
P2: to decide, judges consider factual similarities/dissimilarities, theory, etc.
P3:there is no criterion for sufficient or insufficient factual likeness, or for theory applicability
P4: judge inevitably, and usually very implicitly, relies on policy considerations to bridge, or expand, the gap b/w X and X'
conclusion1: stare decisis factual analysis (and theoretical considerations) is a pseudo-objective proxy for policy considerations that are really doing all the real work in a judge's opinion
conclusion2: ignoring conclusion1, and desperate to take refuge in the shelter of "objective" analysis, the facts/theory:policy ratio ends up heavily skewed to the former, resulting in confusing precedent and exasperating inefficiency.
Again, very schematic and incomplete. This is not intended to function as an adequate substitute for the essay or my other attempts at explanation. There are obviously more in-between steps and many qualifications and nuances left out. I merely offer this to those who might still wish to offer some constructive feedback/criticism. If you're not interested in my point, do not like me personally, and/or have no intention of adding anything meaningful, please, do not waste your time. thanks.