Abstract
The concept of the level of abstraction of analysis is used in many disciplines. This article introduces this concept into legal thinking by identifying, justifying, and applying 14 principles of the concept. The most fundamental principle is that the same set of facts can generate issues that operate on different levels of abstraction, and the rules of law that resolve those issues also operate on different levels. Perhaps the most important principle is that legislative facts (i.e., the facts on which a rule of law is based) may not be determined by a judge’s intuition or predictions, but must be proved by facts in the record of a case. This principle constrains judicial lawmaking in a principled way.
The article discusses a case from the initial decision of an administrative agency, the National Labor Relations Board, through the ultimate resolution in the U.S. Supreme Court, along with cases used as precedents therein. The principles of levels of abstraction, some honored and some violated, are illustrated in these cases. The article concludes by addressing the question, what is the proper level of abstraction at which a dispute should be resolved?
Recommended Citation
Michael E. Gold,
Levels of Abstraction in Legal Thinking,
42
S. Ill. U. L.J.
117
(2018).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol42/iss2/2