Free tool · Legal Reasoning and Argument
How to Distinguish a Case, or Argue by Analogy: A Precedent Comparer
To argue by analogy from a precedent, state the reason the court gave for its result, list the facts of the earlier case and the new case, decide which facts were material to that reason, and ask whether the reason applies equally to the new facts. To distinguish a precedent, show that a fact which mattered to the earlier decision is absent here, or that the new case has a fact which changes the balance. A distinction must be one that could matter to the reason for the decision: a different day of the week is only a difference. The level of generality at which you state the holding is the heart of the argument, and a precedent binds only if it comes from a court whose decisions bind yours.
Tool · Precedent Comparer
An arguable analogy: the cases share the main facts, but there is a difference that the other side will use to distinguish the precedent.
For following the precedent
- Both cases share 3 material facts: the defendant carried on the activity on private land; the claimant was a paying visitor; the injury was caused by a loose board.
- 1 difference can be called immaterial (the accident happened on a tuesday) because they do not bear on the reason for the decision.
For distinguishing it
- In the precedent, “the defendant knew that people used the path every day” supported the result. It is missing here, so the new case lacks a fact on which the precedent relied.
- The new case has a fact that the precedent did not: “a warning sign was in place”. It points the other way, and the court in the precedent never had to decide what it meant.
- Which facts are material is itself the argument. The party who wants to follow the precedent states the facts at a higher level of generality (‘a landowner who knew of a danger’); the party who wants to distinguish states them narrowly (‘a landowner who had posted a warning’).
- A difference counts only if it could have mattered to the reason the precedent was decided as it was. A different day of the week usually does not; a warning sign may.
- Even a strong analogy is not binding unless the precedent comes from a court whose decisions bind yours. For that, see the Is This Authority Binding? tool.
List the facts of an earlier case and of your new case, say which facts mattered to the earlier decision and which way each fact pushes the result, and see how strong the analogy is and what each side would say. It is an exercise in reasoning from precedent, using invented facts: deciding which facts are material is the real argument, and no form can decide that. Runs in your browser; nothing is stored or sent.
How to use it
- List the facts of the earlier case and of your new case.
- Mark which facts were material to the earlier decision and which way each fact pushes the result.
- Read the strength of the analogy.
- Read the points for following the precedent and the points for distinguishing it.
Common questions
What is the difference between the holding and obiter dicta?
The holding (ratio decidendi) is the rule of law necessary to the decision on the facts of the case. Obiter dicta are remarks made by the way, which never bind, though a respected court’s dicta may persuade.
Can I distinguish a case just because the facts are different?
No. A difference matters only if it could bear on the reason for the earlier decision. Courts are impatient with distinctions that are only differences.
Does the tool decide which facts are material?
No. Materiality is a judgement that you must make and defend, and it is the real argument in any case from precedent.
Learn the law behind the tool
This tool is part of our Legal Reasoning and Argument course, with lectures, concept maps, flashcards, interactive exercises and a capstone case. Legal Reasoning and Argument: Reasoning From Precedent.
More free law tools
General information, simplified, mainly on American law, not legal advice. States and countries differ, and real cases turn on facts that a tool cannot capture.