Raz, supra note 62, at 186. For reasons that Raz ably presents, when a judge in most Anglo-American systems rewrites the rule of a prior case in a new case (as Parker did in Mills), the rewritten rule must satisfy several constraints. It must impose additional jointly sufficient conditions on the rule articulated in the distinguished case, it must contain all of the conditions of the original rule, and it must deductively justify the result in the original case. See id. at 186-87 & n.13. Although I have relied in my reconstruction of disanalogy on Raz's analysis of distinguishing, Raz himself does not treat distinguishing as a type of disanalogical inference or reasoning. See id. at 201-06. Indeed, most writers on legal analogy do not recognize or, at any rate, do not explicitly treat distinguishing as a type of argument by analogy. An exception is Eisenberg, who notes correctly that, "at its core, reasoning by analogy is the mirror image of the process of distinguishing." Eisenberg, supra note 22, at 87.

Two other notes on the schema of disanalogy presented here are in order. First, the schema that I offer has one step more than that for analogy. This additional step (it is the first step in the schema, namely, "x and y both have characteristic F') is included in order to reflect the prima facie applicability of cases that are ultimately distinguished by disanalogical argument. Second, and relatedly, I use "unless" in step 5 of the schema to capture the sense that there is some prima facie reason to believe that the compared items do both have the inferred characteristic - even though the reasoner's ultimate "all things considered" conclusion is that they do not. Such is the importance of this special type of disanalogical legal argument that I have allowed it to shape the schema for all disanalogies.