Woodchopper Revisited 7

suggests that the two should receive equal treatment in the form of the same bedtime rule. For her part in step three, mother questions the analogy, arguing that there is a significant difference between the two cases: older children need less sleep than younger children. In step four, mother determines that the difference is more important than the similarity. The analogical reasoning process employed in this family setting is much the same as that employed in law, with the exception, of course, that legal argument is more formal and stylized.” This perception, in turn, raises the question whether“legal reasoning” is at all a distinct form of reasoning or simply the application of general forms of reasoning within a specifically legal context.**

In any event, lawyers do resort to analogy and precedent in order to extend the accepted understandings of the law to cover new cases that offer similar, though not identical, circumstances. Consider the following problem case(step one): are wiretapping and electronic surveillance undertaken by law-enforcement agencies permissible in the absence of a judicially issued warrant? This was the question put before the U.S. Supreme Court in the1928 case Olmstead v. United States.” Olmstead was a bootlegger convicted on the basis of evidence gathered through a wiretap placed by Federal officials who had not obtained a warrant to do so. He contended(step two) that the wiretap violated the Fourth Amendment of the U.S. Constitution , which provides:“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated; and no Warrant shall issue but upon probable cause... particularly describing the place to be searched and the persons or things to be seized.” In steps three and four, both the majority of the court and the dissenters offer analogical arguments as to whether the analogy is successful: is the Fourth Amendment an appropriate source from which to derive the rule that governs this case? Writing for the court’s majority, Chief Justice William Howard Taft declared that the circumstances of this case were fundamentally dissimilar from those provided for by the relevant constitutional text:*"