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.