Every law school promises to teach its students to think like lawyers. At the Texas A&M School of Law, we break the process of thinking like a lawyer into discrete steps and teach those steps to our students explicitly. Let’s look at a very simple example, a problem that requires no prior legal experience to understand.
A jogger runs along a beach past a sign that says, “$100 fine for littering”. A few steps past the sign, the jogger pauses to eat a banana, when he’s done, he throws the peel on the ground. A police officer sees the jogger drop the peel. She recalls that her supervisor did not issue a littering ticket to a person who poured coffee on the ground. But the supervisor did issue a ticket to someone who threw a candy bar wrapper on the ground.
Police Officer Ticket the Jogger
Legal reasoning, or thinking like a lawyer, is the rule-based reasoning. Lawyers always look for the rule that governs the conduct in question. Here, the rule is simple $100 fine for littering. But what does “littering” mean? Here, “littering” is potentially ambiguous. When part of a rule is ambiguous, lawyers look to see how the rule was applied in prior situations.
Prior situations are called precedents. By comparing the facts of the current case to the facts of precedents, lawyers can predict how the rule will apply in the current case. This process of comparison is called analogical reasoning, or reasoning by analogy.
“Analogical reasoning” is just a fancy term for something we all do every day comparing two or more things to see how similar they are. Here, we have two precedents that can help us understand what “littering” means.
- In the first case, someone who poured coffee on the ground was not ticketed for littering.
- In the second case, someone who threw a candy bar wrapper on the ground was ticketed for littering.
So here’s the point of comparison. Is a banana peel more like coffee, or more like a candy bar wrapper? If the banana peel is more like the coffee, then the officer should not issue a ticket. But if the banana peel is more like the candy bar wrapper, then the officer should issue a ticket.
How would a lawyer compare these three items? By figuring out what attributes define them. Lawyers call such attributes “factors”. Let’s see what attributes, or factors, we can come up with for these three items. To keep track of the factors, we’ll use a device I call the case grid. Let’s list our three cases coffee, candy wrapper, and banana along the top. A creative lawyer will come up with as many factors as possible. But in the interest of time, let’s limit ourselves to just three.
- Our first factor, or point of comparison, will be liquid or solid. The coffee is liquid, but the candy wrapper and banana peel are solid.
- Our second factor will be whether the item is natural or artificial. The answer is easy for the wrapper artificial and the peel natural. Coffee beans are natural, but brewed coffee is a manufactured product. So coffee could go either way. We’ll put a question mark for coffee.
- Our last factor will be whether you would put the item in a trash can. Coffee – probably not. A candy wrapper – definitely, and a banana – probably.
So now we have three factors on which to compare the three items. We don’t have enough information on the second factor, natural or artificial, for coffee. So let’s disregard that factor. Sorting, ranking, and discarding factors are another think-like-a-lawyer skill. That leaves two factors.
On both, the peel is more like the wrapper. Because the peel is more like the wrapper on the two factors, analogical reasoning dictates that it will be more like the wrapper in the result, too. Therefore, the officer should ticket the jogger.