Chapter 6

ANALYTICAL REASONING
The application of law to facts involves two client’s
methods: deduction and analogy. situation.2
ANALOGY
DEDUCTION
The second form of reasoning by analogy.
Reasoning in the deductive form is An analogy is a from of logic by which one reasons
associated with reasoning from enacted law – that because two items are alike in at least one
statutes, regulations, executive orders. respect, they are alike in at least one other respect.
The deductive form using a syllogism is the In analogy, the lawyer identifies at least one prior
dominant style of legal reasoning. A syllogism in legal case – one precedent – that seems to have facts in
reasoning has an established structure, consisting of common with the client’s situation. 3
a major premise, a minor premise, and a conclusion.
Three Steps of Analogy:
Syllogism in Legal Reasoning
1st: the lawyer identifies a rule or holding announced
Major Premise Minor Premise Conclusion
in a prior case. The rule serves the function of a
posits a characterizes a asserts that
statement that particular the statement major premise in a syllogism.
is true of a object as is therefore 2nd: the lawyer determines whether the facts are like
class of belonging to true of the
those of a prior case.
objects. the class particular
object.1 3rd: the characterization of the facts as like or unlike
those of the precedent yields the conclusion that the
client’s situation should or should not have the same
Legal Reasoning
legal consequence as the facts in the precedent.4
Major Premise Minor Premise Conclusion
premise states characterizes a states whether Analogy Deduction
a rule of law particular the general A lawyer uses one A lawyer uses a general
applicable to a situation as rule applies to specific case to decide rule to decide a specific
class of either the particular another specific case case.5
situations satisfying or situation Analogical reasoning is considered
described in not satisfying
advantageous because:
the factual the elements
predicate of a factual a. It produces a wealth of data for decision
predicate making;
announces a describes the states whether b. It represents the collaborative effort of a
rule of law facts of the the right or number of judges over time;
client’s duty described
c. It tends to correct biases that might lead
situation in the rule of
judges to discount the force of prior
law has been
demonstrated decisions;
to exist under d. And it exerts a conservative force in law,
the facts of the holding the development of law to a
gradual pace.6

1 5Id.
KENNETH J. VENDEVELDE, THINKING LIKE A LAWYER: AN INTRODUCTION TO
6
LEGAL REASONING 67 (1998). Emily Sherwin, A Defense of Analogical Reasoning in Law, 66 U.
2 Id. CHI. L. EV. 1179 (1999). Sherwin discusses the objections to the
3 VENDEVELDE, supra note, 3 at 86. use of analogous reasoning. See Id. At 1184-1185.
4
Id. At 87.

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