The Brooklyn Rail

Better a Good Ear than a Good Law

It is a hoary saw of common law, and forgive the rhyme, that arguments from precedent should sound. Like most oracular juridical pronouncements this invocation of a syntonics of casuistry, a euphony of edicts, is somewhat opaque. Judges will often intone that an argument sounds in law, that it is on all fours with prior decisions, and this appears to mean that it rings, chimes, or tinkles like a clashing of cymbals or roll of drums announcing the onward march of the legion of legists or the achievement of a perfect pitch such that harmonizes with the choir of juristic precedents. The sounding, however, goes unexamined, the word astray as if a mere metaphor or esoteric reference, some croaking divinity or old-fashioned idol lost now in the mists of the immemorial and time, as they say, out of mind.