[E]very good legal argument is cast in the form of a syllogism.
***
Common wisdom has it that legal reasoning proceeds by analogy. this maxim is true in an important way, but it is nevertheless a misleading way to look at legal argument, and is probably responsible for many a poorly crafted and confusing argument.
***
The analogies between the case at hand and the cases cited as precedent serve only the secondary function of supporting the premises of th[e] syllogism. thus, the analogy is not the argument; the syllogism is the argument.
James A. Gardner, Legal Argument: The Structure and Lanugage of Effective Advocacy (2d ed. 2007) ยงยง 1.4-1.5 (emphasis in original).
Comments on this entry are closed.