Posted by Eugene Volokh:
Analogizing and Distinguishing Cases:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1249928819
In my Torts syllabus, I also included these paragraphs on analogizing
and distinguishing cases. Though they are in many respects pretty
obvious, my sense is that sometimes it's helpful to walk through even
the obvious things, especially to students who are likely feeling
nervous and inadequately informed about what they're supposed to do.
And of course if any of you can contribute some ideas I can add to
this to make it less obvious, I'd be very pleased to see them.
* * *
As I mentioned, analogizing and distinguishing cases is an important
skill. Its basics are pretty intuitive, but let me offer this simple
framework:
A. To distinguish cases, you need to (1) identify the differences
between the cases, and (2) explain why the differences should be
legally significant. The explanations called for in step 2 are often
based on (3) particular policy arguments that point in different
directions for the two cases and (4) analogies to other legal rules in
which a similar distinction is drawn.
For instance, say that a precedent concludes that it can�t be a
tortious disclosure of private facts to publish accurate information
(for instance, a person�s criminal record) that one has gotten from
government records (for instance, court documents). And say that you
want to argue that it is a tortious invasion of privacy to publish
accurate information about a person�s past misdeeds if one gets the
information from witnesses to the misdeed. (Perhaps the misdeed never
led to a prosecution.)
You need to point to the difference between the cases -- the precedent
involved court records and the new case doesn�t. But you also need to
explain why that difference should be legally significant. After all,
presumably both sorts of disclosure are equally intrusive on people�s
privacy, and are potentially equally newsworthy (newsworthiness is a
defense to a disclosure of private facts claim). What sorts of
arguments can you think of to support the distinction, whether or not
you yourself think those arguments carry the day?
B. To analogize cases, you need to (1) identify the cases to which you
want to analogize, (2) point to the similarities and explain why they
should be legally significant, and (3) explain why the differences
should not be legally significant.
When you distinguish cases, you often know which precedent you need to
distinguish (sometimes because it�s the one your opponent has already
pointed to as a good precedent for him). But when you want to support
your position with an analogous precedent, it often won�t be clear
exactly what precedent is analogous. It might take a good deal of
research, as well as creative thinking about how certain seemingly
different cases are actually analogous in an important way. Such
thinking is one thing that we�ll be trying to train in this class.
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