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EXAMPLES & EXPLANATIONS FOR LEGAL WRITI

Applying the Law:

Analogical Analysis wa
co
co

prec
"we
You've undoubtedly been reasoning by analogy since basee
childhood. Any game that asked you to sort objects into woul
categories asked you to reason by analogy. And just as you text i
tried then to figure out which shared characteristics were by ex
important enough to group objectstogether and labelthem prece<

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LEGAL WRITING (EXAMPLES & EXPLANATIONS SERIES)

as alike, now as a lawyer you'll analyze by trying to figure

out which shared facts and concepts in similar cases are
important enough to group cases together and label them
with similar outcomes.(Didyou notice that the last sentence
was a good example of an analogy?)
Analogical reasoning is important because it'sa key
is way that courts make decisionsin a common law system
Courts generally want to treat similar cases alike. Thus,

courts will reason by analogy in deciding cases, and lawyers

will accordinglyargue that their case is like or unlike a
precedent. Indeed, when lawyers say that an argument is
"well-supported" they usually mean that the argument is
since based on, or connected to, a text to which the relevant court

)jects into would defer.When you reason or argue by analogy, that

ust as you text is a case. And you support your analysis or argument

istics
were by explaining how your case is the same or different from a
label
them precedent case.

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EXAMPLES & EXPLANATIONS FOR LEGAL WRITI

Terminolou notes. Lawyers talk about "analogizing" to

or "distinguishing"from a precedent case. When you
"distinguish a case," you tellthe reader how your case
is different from the precedent and therefore requires a
differentresponse or outcome. Distinguishing a case is also

sometimes called"counter-analogicalreasoning."

WHAT YOU NEED TO KNOW ABOUT

ANALOGICALREASONING c
n
It's not enough to say that your case is like or unlike t
a precedent case; explain how they're alike or different. a
Sometimes you may feel as though you're stating the
obvious, but when making analogies or distinctions, re
it's best
to make your analysis explicit.For instance,
if you were

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OR LEGAL WRITING (EXAMPLES & EXPLANATIONSSERIES)

)gizing" to making an analogy in the copyright and fair use problem,

en you instead of just saying Dash's work is like the defendant's
your case work in Mattel, explain that they're both "transformative"

requiresa and describethe facts in Matteland in your case that show

case is also the work is transformative.

Compare or contrast facts that are relevant to the precise

issue you're addressing.That your case and a precedent
are similar or different in some respect isn't what matters;

UT you could find something similar or different about any two

cases in the world. Instead, the comparison or distinction

needs to be about something that'srelevant to the issue—

typically, that your case is similar or different with respect to
e or unlike a fact that mattered to the outcome in the precedent.
different.
If you're having a hard time decidingwhether a fact is
stating the
relevant, remove the fact from the narrative and ask yourself
ions, it'sbest
whether your analysiswould change. If removing a fact
if you were
would change the analysis, then it'sa relevant fact.

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EXAMPLES & EXPLANATIONS FOR LEGAL WRITING

You can phrase analogical reasoning effectively in

many different ways. The keys are to write clearly, make
the connections explicit,and keep the structure parallel so

that you compare apples to apples. For instance, if you're c

analogizing the defendant in your case to the defendant
in a precedent, make sure to keep a parallel structure—

defendant to defendant.

Like the defendant in Poehlen, the Defendant here also robbed a

As
convenience storeat gunpoint.
Not: [rele
Like Poehlen, the Defendant robbed a convenience store at froni

gunpoint.
As
Here are templates that provide phrasing lawyers might th

use for analogizing and distinguishing. Where you see Pa

brackets,you would insert material from your assignment
and the precedent you're discussing.

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Like the [defendant/plaintiff/victim/etc.lin [Precedent],

ake who [relevant precedent fact], here the [defendant/
el so plaintiff/victim/etc.] also [relevantsimilar fact from your
ou're case].
dant
Likethe defendant inJones, who had a long record of criminal
activity, here the Defendant also has a long record of criminal

activity.
bed a
As the [defendant/plaintiff/victim/etc.] in [Precedent]

[relevant precedent fact], here also [relevant similar fact

ore at from your case].

As the defendant in Fisher targeted the same genre of music as

might the original, here also Dash targeted the same genre of music as

u see Page's original.

ment

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EXAMPLES & EXPLANATIONS FOR LEGAL W

In [Precedent],[relevant precedent fact]. Likewise, here

[relevant similar fact from your case]. Thus, in both

[Precedent]and the instant case [similar relevant facts] and

[result from the precedent case]should result here.

In Jones, the defendant used more than twenty percent of the

original'slyrics and the court found that was not fair use.
Likewise,here Dash used more than twenty percent of Page's
"Red, White and Blue" lyrics.
Thus, in both Jones and the instant
case the defendants used more than twenty percent of the lyrics
and no finding of fair use should result here.

Similar to [Precedent],in which [relevant precedent fact],

here [relevant similar fact from your case].

Similarto Mattel,in which the defendantcopiedpart of the

original to deliver a social message, here Dash copied part of
Page's song to deliver a social message.

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here Although in [Precedent][relevant precedent fact], our case is

both distinguishable because [relevantdistinguishablefact from
tsl and your case].

Although in Campbell the copy acceptably used four bars of the

It of the original to create the parody,our case is distinguishable because

fair use. here Dash's copy used every bar of the originalby keeping the

of Page's same form in every line, repeating over twenty percent of the

instant original lyrics,and nearly duplicating the chorus.

the lyrics
where [relevantprecedent fact], here
Unlike in [Precedent],
[relevant distinguishable fact in your case].

fact],
Unlike inJones, where the defendant was calling a public health
offcial, here King was calling her friends.
art of the

ed part of In [Precedent],[relevantprecedent fact]. In contrast, here

[relevant distinguishablefact from your case]. Thus, as

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EXAMPLES & EXPLANATIONS FOR LEGAL WRITING

[resulting legal distinction], it does not follow that [result

from the precedent case]should result.

InJones,the defendant receivedMiranda warnings as soon as she

was in custody. In contrast,here the defendant was in custody
for several hours before receiving the Miranda warnings. Thus,
as the defendant in our case did not know of his right to a lawyer

in a timely fashion, it does not follow that his confession should

b
be admissible.

t
HOW TO ANALOGIZE AND DISTINGUISH t
th

Using the copyright and fair use problem u

in Appendix B,
we'll walk you through the process of analogizing and co
distinguishing. us
tr

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It Problem

Here is a quick overview of the copyright and fair use

problem (for detailssee Page is suing Dash

for violating the Copyright Act when Dash wrote a song

based on Page's song (which in copyright terms is called

uld
the "original"),"Red, White, and Blue." Dash's song uses
the structure and many lyrics of the original but changes

the original song's politicalmessage. The music of the

two songs is not at issue, only the lyrics.Page expects
that Dash will argue that his song is a parody that falls

under the fairuse exception to the Copyright Act. The

court will consider the relevant factors set out in the fair
and
use statute, 17 U.S.C.S 107 (2012): whether the copy was

transformative and targeted the original;whether it took

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EXAMPLES & EXPLANATIONS FOR LEGAL WRITI

more than necessary of the original; and whether it will

interfere with the original'smarket.

Let's start with analogizing to precedents concerning the

firstfactor of the fair use test— "the purpose and character

of the work"— that looks at whether the work in question is

o
"transfonnative." Making analogies and distinguishing cases 5
can be tricky with this copyright and fair use problem
because in addition to comparing the problem's facts to

precedent (as usual with analogical reasoning), the reader 2

will also be comparing the two songs in the problem's 5
facts (the original song and the parody). Nevertheless, the pr
problem provides a good chance to look at how to analogize
and distinguish cases. tr
Step 1: Read the cases and consider the facts of the
precedents and the facts of your assignment, looking

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primarily for facts that are about the precise issue you're
addressing. In the copyright and fair use problem, courts
consider whether a work is"transformative"when deciding
the firstfair use factor. A work is transformative when it
e
"adds something new, with a further purpose or different
character altering the firstwith new expression, meaning,
or message." Campbell v.Acuff-Rose Music, Inc.,510 U.S. 569,

579 (1994). Read the cases, looking for facts and outcomes

we can use to make comparisons. In each of two cases, Mattel

to
v. WalkingMountain Productions, 353 F.3d 792, 806 (9th Cir.
2003), and Campbell v. Acuff-Rose Music, Inc.,510 U.S. 569,
a's 589 (1994), a court that creates binding precedent for your
problem decided that a work was "transformative."
These facts seem relevant to the issue of whether a work is
transformative:
:he
Ing

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EXAMPLES & EXPLANATIONS FOR LEGAL WRITING (E

Mattel The manufacturing company, Mattel, had
established its doll, Barbie, as "the ideal American
woman."

• The defendant created photographs that conveyed a Campb

sexualized perspective of Barbie by showing the nude
doll in sexually suggestive contexts.

• Mattel's advertisements showed the dolls dressed in

various outfits,leading glamorous lifestylesand engaged
in exciting activities.

• The defendant showed Barbie about to be destroyed

or harmed by domestic lifein the form of kitchen
appliances.
• To sell its product, Mattel used associations
of beauty,
wealth, and glamour.

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• The defendant'scommentary intended to show the

harm that he perceived in Barbie'sinfluence on gender
roles and the position of women in society.
Campbell • The original song portrayed a romanticized story ofan
encounter with a prostitute.

• The defendant's song was a modern, gritty approach to

prostitution.

ged
• The original song was in the rock genre.

• The defendant's song was in the rap genre.

• The original song is full of restraint and innuendo.

• The defendant's song takes a direct insulting approach.

• The original song began with "Pretty Woman, walking
down the street."

• The defendant's song began with "Pretty woman walkin'

down the street."

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EXAMPLES & EXPLANATIONS FOR LEGAL WRI

• The structure of the defendant's song was different from

the structure of the original.

Step 2: Choosethe facts from your assignment that may

be relevant to the particular legal test that applies to your
issue. Here, that means choosing facts that address whether

the new work is "transformative," that is to say, whether it

"adds something new, with a further purpose or different

character,altering the firstwith new expression, meaning,

or message." Look for facts,both positive and negative, that

show how the defendant Dash's song is the same or different
from the plaintiff Page's song.

We find these facts in the copyright and fair use problem.

• Page'ssong sends a message that America has faults and

points out weaknessesin certain aspects of American
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t from life and values, especiallyeconomicinequality and the

inability of politicians to solvethe problems.

it may • Dash's song is not critical of America at all and sends a

message of pride in America and its values with lyrics
o your
like "We've got flags a-waving, America the best."
hether
*her it - • The chorus of Page's song sends an ambiguous message
erent of hope when it states it is "through WIth being blue."
eaning,
• The chorus of Dash's song sends an unambiguous
ve, that
message of hope and commitment to America.
erent
• The chorus of Page's song became a chant at patriotic

roblem. rallies.

• Dash's song is explicitly patriotic

and
Il-llts
Lmerican • Page's song is in the rock genre,

• Dash's song is in the rock genre.

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EXAMPLES & EXPLANATIONS FOR LEGAL WRITII

• Page's song has images of joblessness and poor mothers

with their babies in shopping carts.

• Dash's song has images of brave soldiersand proud

mothers holding their babies in their arms.
• Page's song ends with a negative statement on the
likelihood of change and a description of how those in
power are getting richer at others' expense.
• Dash's song ends with a positivestatement about hope,
pride, and fighting for American ideals.

Step 3: Pick out the key facts from an analogous case,

being careful to articulate exactly howand why the two
cases are similar or different. Here are just a few of the
many possiblecomparisons that you might make.

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rs • Unlike the songs in Campbell,where the genre of the songs

were different, here the genre is the same because Page's song
and Dash's song are both in the rock music genre.
ud
• Like in Campbell,where the parody was different from the
original, Dash's parody differs from Page's original. In Campbell

the one song presented a romanticized view of society and the

other was a criticism of society. Here also, Dash's song presents

a romanticized view of society and Page's song is a criticism of

society.
ope,
• Similar to Campbell,where the lyrics of the parody differed
greatly from the lyrics of the original, here the lyrics of the two

songs differ greatly.

case,
two • Unlike in Campbell, where the structure of the defendant's

f the song differed greatly from the original, here the defendant's
song uses the exact same structure of chorus and verse,

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Finally, notice that the extent to which facts are

generalized can change their effect.A differencecan be
framed as a similarity, and vice versa, if you zoom far

enoughin or out. In objectivewriting it's a good idea to

take a neutral approach, as you would expect a court to do.

In persuasive writing, be aware of the importance of these

framing choices, while being careful not to stretch too far.

Here is an analogy that stretchesthe comparison in an

acceptableway:

be
• Similar to Mattel, where the defendant's purpose was
YO
to criticize the viewpoint of the original work about ex)
women in society,here also the defendant's purpose
wo
was to criticize Page's view of America and change it to
Dash's message of complete pride in America.

Here is an analogy that might go too far:

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z
—e Unlike in Mattel, where the copy's purpose was to
challenge the way the original doll represented women

in society, here the purpose of Dash's work is identical to

that of Page's, to make a comment on America.