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Beware the Allure Of Analogy
I just finished reading Professor Benjamin Halasz’s excellent article on how to effectively present arguments by analogy (February 2021 Bar News). The article instantly reminded [me] of [Washington Supreme Court] Justice [Stephen J.] Chadwick’s admonition in State ex rel. Syverson v. Foster, cautioning lawyers against overreliance on arguments by analogy:
[N]o cases are cited by counsel on either side. They say none can be found, … but it does not follow that there is no law to cover the case. A more frequent reference to fundamental principles would make for better law and save much time and energy wasted in reading, approving, discussing, distinguishing, or rejecting cases from the great mass of judicial opinions to be found in the published reports.
“Case law is fast becoming the great bane of the bench and bar. Our old-time great thinkers and profound reasoners, who conspicuously honored and distinguished our jurisprudence, have been succeeded very largely by an industrious, painstaking, far-searching army of sleuths, of the type of Sherlock Holmes, hunting some precedent in some case, confidently assured that if the search be long enough and far enough some apparently parallel case may be found to justify even the most absurd and ridiculous contention.”
State ex rel. Syverson v. Foster, 84 Wash. 58, 60-61, 146 P. 169 (1915) (quoting State v. Rose, 89 Ohio St. 383, 388-89, 106 N.E. 50 (1914)).
Andrew Van Winkle, Spokane