Use of analogies.

JurisdictionUnited States

Section 52. Use of analogies.—The use of apt analogies, I am coming more and more to believe, is the mark of a really good lawyer. Any clerk can look up cases in the digests, but it takes an active, a trained, and above all a resourceful legal mind to search for and find persuasive analogies.

Two fine lawyerlike examples that remain vividly in mind are Mr. Justice Cardozo's analogies in the Social Security cases,47 and Alfred Bettman's article on the Constitutionality of Zoning,48 (which antedated and forecast the Supreme Court's decision on the question).49 Examine those, study the technique of comparison there employed, and you will begin to appreciate the essential difference between a lawyer on the one hand and a mere attorney at law on the other.

Of course analogies must be accurate, and they must not be carried too far. Two of our greatest judges have left us warnings on that score. Mr. Justice Holmes said: "As long as the matter to be considered is debated in artificial terms there is a danger of being led by a technical defini tion to apply a certain name, and then to deduce consequences which have no relation to the grounds on which the name was applied."50 And thirty years later Mr. Justice Cardozo remarked that "When things are called by the same name it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning."51

But, more frequently than otherwise, the real difficulty is not that the analogy used is doubtful or that it is sought to be extended too far; the trouble is that the lawyer never invokes any analogy at all. The corpus is now so large that, with the inevitable specialization which follows, the current thinking of many if not most practitioners is marked by too much compartmentalization, and far too little cross-fertilization. Not infrequently, judges are apt to think that their colleagues share the bar's shortcomings in this respect in not paying adequate heed to analogous situations.52

All too often, the best analogies occur to the brief-writer after the case is over. Thus, on the loss-of-jurisdiction point in the case of the serviceman's wife whom the Air Force sought to retry by court-martial in the District of Columbia after her first conviction following military trial in England had been set aside,53 I argued that, under an unbroken line of military rulings, any act of the Government separating an individual from the service terminated military...

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