Schauer Ch. 5

Question 1

What is the most common use of argument by analogy in legal contexts?

Answer 1

The most common use is to apply legal principles established in previous cases to current cases with similar facts or issues

Question 2

Explain the relevant similarities and differences between MacPherson and Donoghue that
could be used to argue that Donoghue is or is not relevant precedent for deciding MacPherson.

Answer 2

Similarities: both cases involve claims of negligence against manufacturers for injuries, both cases raise the issue of whether a duty of care is owed to the ultimate consumer of a product
Differences: MacPherson involves an automobile / Donoghue involves a beverafe. MacPherson was in the U.S. and Donoghue was in the U.K., the legal standards and precedents set used in each case are different
Argument for relevance: the underlying issue of duty of care owed to consumers is similar in both cases making Donoghue relevant for deciding MacPherson
Argument against relevance: the differences in products, jurisdictional standards, and legal standards undermine its relevance

Question 3

What reasons are there to expect that argument by analogy is mere window dressing?

Answer 3

If it is used superficially or insincerely, if used as a rhetorical device to bolster their argument, if the analogies drawn are weak or irrelevant

Question 4

How is argument by analogy supposed to affect the speed of legal change?

Answer 4

It can accelerate the speed of legal change by applying established legal principles from precedent cases to new situations through analogy. However if analogies are used conservatively then legal change may be slowed down