Teaching and using analogy in law

Hunter, Dan (2004) Teaching and using analogy in law. Journal of the Association of Legal Writing Directors, 2, pp. 151-168.

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Analogy plays a central role in legal reasoning, yet how to analogize is poorly taught and poorly practiced. We all recognize when legal analogies are being made: when a law professor suggests a difficult hypothetical in class and a student tentatively guesses at the answer based on the cases she read the night before, when an attorney advises a client to settle because a previous case goes against him, or when a judge adopts one precedent over another on the basis that it better fits the present case. However, when it comes to explaining why certain analogies are compelling, persuasive, or better than the alternative, lawyers usually draw a blank. The purpose of this article is to provide a simple model that can be used to teach and to learn how analogy actually works, and what makes one analogy superior to a competing analogy. The model is drawn from a number of theories of analogy making in cognitive science. Cognitive science is the “long-term enterprise to understand the mind scientifically.” The field studies the mechanisms that are involved in cognitive processes like thinking, memory, learning, and recall; and one of its main foci has been on how people construct analogies. The lessons from cognitive science theories of analogy can be applied to legal analogies to give students and lawyers a better understanding of this fundamental process in legal reasoning.

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ID Code: 70828
Item Type: Journal Article
Refereed: No
Keywords: HERN
ISSN: 2162-9803
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Deposited On: 01 May 2014 04:27
Last Modified: 14 May 2014 02:02

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