legal reasoning: analogy

Analogy and precedent: Introduction

by Martha Minow


One of the most distinctive elements of legal reasoning stems from the use of precedents. Prior judicial opinions have authoritative weight and yet law does change. Learning how this process works and becoming adept at using and distinguishing precedents is thus crucial to legal education.

Precedential reasoning actually is a specific instance of a larger reasoning process: reasoning by analogy. Indeed, lawyers and judges pervasively draw comparisons among and distinctions between patterns of facts and concepts. These materials show vivid examples of analogical and precedential reasoning drawn from first-year courses materials with easy connections to full case opinions through on-line searches. Also included is a step-by-step guide to the use of analogies and disanalogies in law. A survey of criticisms leveled against reasoning by analogy in law is followed by some defenses. A final element offers exercises designed to sharpen your ability to reason by analogy about legal issues. Watch and listen for the visual and audio materials, included for fun and instruction.