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Legal Skills Prof Blog

Wednesday, August 3, 2011

Tip of the Week: Five Methods of Legal Reasoning

By Legal Skills Prof

Five Methods of Legal Reasoning

1. Rule-Based Reasoning:

Rule-based reasoning is the most important type of legal reasoning. In rule-based

reasoning, you take a rule (a statute or a case holding) and apply it to a set of

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

mandatory, prohibitory, discretionary, or declaratory." (Richard K. Neumann, Jr.,

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

be that intentional infliction of emotional harm occurs if 1) the defendants conduct

is outrageous, 2) the defendants conduct is intentional, 3) the defendants

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

Reasoning by analogy concerns finding similarities. Reasoning by analogy in the

law occurs when one argues that the facts of the precedent case are like the

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

Distinguishing cases is the opposite of reasoning by analogy. In distinguishing

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

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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.

Synthesized rule: A person who owns an inherently dangerous animal that

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)

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