Professional Documents
Culture Documents
1 of 2
http://lawprofessors.typepad.com/legal_skills/2011/08/tip-of-the-week-fi...
facts. (This is a type of deductive reasoning.) Richard Neumann has stated that
rules have at least three parts: "(1) a set of elements, collectively called a test;
(2) a result that occurs when all the elements are present (and the test is thus
satisfied); and (3) . . . a causal term that determines whether the result is
Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In
addition, some rules have "one or more exceptions that, if present would defeat
the result, even if all the elements are present." (Id.) An example of a rule would
conduct causes, 4) severe emotional distress. The rule would be satisfied if the
facts of the present case satisfies all the elements of the rule. For example, if an
ex-boyfriend calls an ex-girlfriend several times in the middle of the night to
harass her (outrageous conduct; intentional conduct) and this causes (causation)
her severe emotional distress (element 4), intentional infliction of emotional
distress has taken place.
2. Reasoning by Analogy
facts of the present case so that the rule of the precedent case should apply to
the present case. (A is like B, so the rule from A applies to B.) An example of
reasoning by analogy is that the rule that one who keeps a wild animal, like a
tiger, on her property is strictly liable for any damage caused by that animal also
applies to pit bulls because a pit bull, although not a wild animal, is inherently
dangerous just like a wild animal. The two cases are never exact; reasoning by
analogy is a question of degree. The writer must convince the reader that the
facts of the two cases are similar enough that the rule from the precedent case
should apply to the present case.
3. Distinguishing Cases
cases, one argues that the facts of the precedent case are not like the facts of
the present case so that the rule from the precedent case does not apply to the
present case. For example, a toy poodle is not like a wild animal because toy
poodles are not inherently dangerous so that the rule from the wild animal cases
16,9,2016 8:04 AM
http://lawprofessors.typepad.com/legal_skills/2011/08/tip-of-the-week-fi...
that an owner of a wild animal should be strictly liable for any damage caused by
that wild animal should not apply to toy poodles.
4. Reasoning by Policy
With policy based-reasoning, the writer argues that applying a particular rule to a
case would create a precedent that is good for society. For instance, in early
products liability cases, lawyers argued for strict liability when a product injured a
consumer because manufacturers could better spread the cost of injuries than
consumers. Policy-based reasoning can also be combined with reasoning by
analogy. For instance, one can argue that the policy behind the rule in the
precedent case also applies to the present case so the rule in the precedent
case should also apply to the present case.
5. Inductive Reasoning
Inductive reasoning is reasoning from the specific to the general. Lawyers use
inductive reasoning to synthesize rules. In other words, lawyers take the holdings
from several cases and by synthesizing those specific cases, they come up with
a general rule. To synthesize a rule look at the similarities among the facts of the
precedent cases and the differences among the facts of the precedent cases.
Also, look at the reasoning behind the holdings.
Case 1 holding: A person who owns a tiger that escapes and causes personal
injury is strictly liable for that personal injury.
Case 2 holding: A person who owns a tiger that escapes and causes property
damage is strictly liable for that property damage.
Case 3 holding: A person who owns a pit bull that escapes and causes personal
injury is strictly liable for that personal injury.
Case 4 holding: A person who owns a toy poodle that escapes and causes
personal injury is not strictly liable for that personal injury.
escapes and causes personal injury or property damage is strictly liable for that
personal injury or property damage.
Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be
aggressive, are inherently dangerous, while toy poodles are not. When two
innocent parties are involved, the law usually holds the party liable that keeps
dangerous things, like wild animals. The rule applies to both personal injury and
property damage.
Update: ABA Publishing has issued my book, Think Like a Lawyer: Legal
Reasoning for Law Students and Business Professionals, which includes many
exercises on the Five Methods of Legal Reasoning. It is available from ABA
Publishing, Amazon, and many other outlets.
(Edwin Scott Fruehwald)
http://lawprofessors.typepad.com/legal_skills/2011/08/tip-of-the-weekfive-methods-of-legal-reasoning.html
16,9,2016 8:04 AM