Module 3

Reasoning from precedent: reading a case, finding the holding and arguing by analogy

A great deal of what lawyers argue about is not what a statute says but what earlier courts did. In common-law systems decided cases are a source of law: a court is expected to treat like cases alike, and a decision by a higher court in similar circumstances binds a lower one. In civil-law systems judgments are not formally binding in the same way, but consistent decisions of the highest courts carry real weight and are cited constantly. Either way, a lawyer must be able to read a case for what it decides, work out how far that extends and argue that a new case is, or is not, like it. These are skills of analysis, and they are taught less often than the rules themselves. This module teaches them. It explains why precedent has force, how to read a case and find its holding, why the level of generality at which you state the holding is the heart of the argument, the four things a court can do with a precedent (follow, distinguish, narrow or overrule it) and the steps of argument by analogy, with a tool that weighs the analogy fact by fact. All the cases in this module are invented.

General education on legal reasoning and argument, using invented cases, by-laws and people. It states common principles and does not describe any one country’s law, rules of evidence or professional conduct rules, which differ and change. It is not legal advice, and it does not replace the instruction of a law school or a supervising lawyer.