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Comparison of things based on similarities
Analogia Equality of ratios/proportion


Two situations are analogous if they share a common pattern
of relationships among their constituent elements, even though the
elements themselves differ across the two situations


One attempts to show that the facts of the problem case are
substantially similar to those in the binding precedential case


Reasoned elaboration" of law, to be
distinguished from an exercise of
"discretionary fiat.
Henry M. Hart, Jr. and Albert M. Sacks,
The Legal Process: Basic Problems in the Making and
Application of Law

A judge reasoning by analogy studies the facts
and outcomes of a case he deems similar to the
case before him, formulates the rule "inherent" in
the prior case, and then uses it to decide his case
Edward Levi, An Introduction to
Legal Reasoning .

Argument from analogy: an argument
that suggests that the presence of certain
similarities is evidence for further similarities.
Common Form:
1. A and B have characteristic X
2. A has characteristic Y
3. So B probably has characteristic Y too

The purpose is to reach a conclusion in a novel
This process has a three-stage process:
1) the similarity between cases is observed;
2) the rule of law (ratio decidendi) inherent in
the first case is stated (reasoning is from the
particular to the general: deduction);
3) that rule is applied to the case for decision
(reasoning is from the general to the
particular: induction).

Judges and analogy

Articulate a proper base point for comparison
with the instance in dispute
Identify similarities and differences between the
base point and disputed instance
Determine whether to treat the two instances the
same because the similarities outweigh the
differences or to distinguish them because the
differences prevail.

The precedent will be followed (binding)(controlling):

If the facts are substantially similar, and for a similar
contextual purpose.

The precedent will be distinguished (not binding; not
If the facts are substantially dissimilar, or
If the context is dissimilar.


Where case-law is considered, and there is no
statute, he is not bound by the statement of the
rule of law made by the prior judge even in the
controlling case

1) Perception of relevant likeness
2) Find ratio decidendi
3) Application to the instant case

Edward Levi- 1,2

A manufacturer of products , which he sells such a form as to show
that he intends them to reach the ultimate consumer in the form in
which the left him with no reasonable possibility of intermediate
examination and with the knowledge that the absence of reasonable
care in the preparation or putting up of products will result in an
injury to the consumers life or property , owes a duty to the consumer
to take that reasonable care


Grant v. The Australian Knitting Mills(1936)
The decision in Donoghues case did not depend on the
bottle being stoppered and sealed. The essential point in
this regard was that the article should reach the consumer
or user subject to the same defect as it had when it left the
- Lord Wright.

Injury to P due to Collapse of a lift .
Defendants were a firm of engineers who repaired the lift.
Collapse was occurred due to negligence of D.
Not manufacturer.
Possibility of intermediate examination.

where the facts show that no intermediate inspection is
practicable or is contemplated , a repairer of a chattel stands in
no different position from that of a manufacturer , and owes
such a duty of care to a person who , in the ordinary course,
may be expected to make use of the thing repaired
Haseldine v. Daw (1941)

Manufacturers of a crane sold it in parts to the employers.
Defects in crane caused workmans death.
I agree that the decision in Donoghues case may enable a
workman to succeed where the manufacturer has put upon the
market , with the knowledge that it was going to be used by a
workman , a machine defective in construction in such a way
that no reasonable examination can be expected to discover the
-Greer L.J
Held not liable

Farr v. Butters(1932)

More than one precedent
1) Perception of analogies
2) Determination of rationes decidendi
3) Construction of a rule/s
4) Application

Private justice, moral fitness , and public convenience when
applied to a new subject make common law without a precedent
- Willes J.

Valentini v. Canali (1889)
Infants Relief Act , 1874 - contract for supplying goods to an infant is
absolutely void.
Money paid under a void contract can be recovered.
P agreed to buy furniture , paid half amount and acquired possession.
Later claimed rescission of contract and repayment.

Cases Of First Impression

when an infant has paid for something and has consumed
or used it , it is contrary to natural justice that he should
recover the money which he has paid

Pearce v. Brain (1929)
An infant exchanged his motor cycle for a car
Car had wrecked due to a defect which existed at the time
of sale and either party unaware of it.
Held unable to recover the motor car.

A court faces a case in which the defendant, a
contractor, found buried money under the
plaintiff's garage.
Schley v Couch, (1955)

The court surveys past cases having to do with things lost and
found and finds the following:
(1) someone found money on the floor of a shop or similar
premises and the courts held that the finder was entitled to retain
possession as long as the owner of the lost property was not known
Bridges v Hawkesworth,(1851)
(2)someone found money on a table in a shop or on a chair in a
bank safe deposit room and the courts held that the owner of the
place where the money was found was entitled to possession
McAvoy v Medina,(1866)

(3)someone found a brooch on a window ledge in a house
temporarily requisitioned by the government and the court held
that the finder was entitled to possession
Hannah v Peel,(1945)

The court might then propose the following analogy:
when property is found in circumstances that suggest its
owner set it down deliberately and then forgot it, the right to
possession should go to the owner of the place where the
property was found. If, however, it seems that the owner
dropped the property inadvertently, possession should go to
the finder

Adams was a passenger on the defendants steamboat.
During the night, having locked the door and windows of his
room, he left a sum of money in his clothing. The money was
Adams sued to recover the amount of his loss.
Adams v. New J ersey Steamboat Co

Precedent.1: Hotel owner held liable for a guests stolen
Precedent.2: Railroad company held not liable for the loss
of the luggage of a passenger who travelled on a train in
locked sleeper berth.

The issue was
whether steamboat operator owed a passenger who had
occupied one of its rooms the same very high duty of
care that as courts had held in previous cases an
innkeeper owes its guests,
the lower duty of care that as the court had held in
another case a railroad owes passengers who sleep in
open berths in its sleeping cars (as distinct from closed

The court analogized the steamboat company to the
innkeeper rather than to the railroad, and held therefore
that the steamboat company owed the higher duty of care
to the plaintiff and so was liable for the theft.
It called the steamboat "a floating inn"

Section 1 of the US Copyright Act of 1909 :
Any person entitled thereto, upon complying with the provisions
of this title, shall have the exclusive right . . . to perform the
copyrighted work publicly for profit if it be a musical composition.
The defendant, operated a hotel.
The hotel had a master radio receiving set, which was wired to
its public and private rooms.
It received broadcasts of a local radio station that included
copyrighted songs and transmitted the broadcasts tot he hotels
Buck v. Jewell-LaSalle Realty Co. U.S.,(1931).

There is no difference in substance between the case where
a hotel engages an orchestra to furnish the music and that
where, by means of the radio set and loud-speakers here
employed, it furnishes the same music for the same purpose.
In each the music is produced by instrumentalities under its

Analogy between a live hotel orchestra , performances of
which were unquestionably covered by the copyright, and
reception and transmission of a radio broadcast.

Fortnightly operated community antenna television
(CATV) systems, by which television programs were
transmitted to homes in communities that the stations own
broadcasts did not reach.
The programs included movies to which United Artists
held the copyrights. The licenses that United Artists gave
to the stations to show the movies did not authorize a
further transmission.
United Artists sued Fortnightly for copyright infringement
Fortnightly Corp. v. United
Artists Television, Inc.
US (1968)

Court HELD what the cable television operators were
doing as merely amplifying the broadcast signal, just as
when a homeowner puts an antenna on his roof in order to
receive signals from distant stations.

Court by analogy contrasted the exhibitor of a movie or play,
who unquestionably performs, and a member of a theater
audience, who unquestionably does not, and extending those
examples to a television broadcaster, on one hand, and a
television viewer, on the other, and concluded that
Fortnightly, like a television viewer, was not an active
performer but rather the passive beneficiary of the
performance of another.

Aiken operated a fast food shop, in which he installed a
radio with speakers.
Throughout the day, Aiken, his employees, and his
customers heard whatever was broadcast on the station to
which the radio was tuned.
Holders of copyrights to some of the songs that were
broadcasted sued for copyright infringement.
Twentieth Century Music Corp. v.
US (1971)

Court relied on analogies between an ordinary performer
and a broadcaster, on one hand, and between a member of
an ordinary, on-site audience and a radio listener or
television viewer on the other.

The U.S. Constitution 4th.Amendment protects
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
Wiretapping was not a search within the meaning of the
Fourth Amendment.
Olmstead v. United States , U.S.(1928)

Wiretapping is an invasion of conversational privacy.
Court compared the telephone booth from which Katz
made the call that was intercepted to a person's office ,
both being places in which there is an expectation of
Katz v. United States , U.S. (1967)

Treating relevantly similar cases similarly is a
fundamental aspect of rationality .This general
principle of rationality is one of the engines that
makes analogies run.

An appeal to consistency is just an attempt to treat
relevantly similar cases similar.
Analogy and Consistency

When we treat similar cases similarly, we are
acting rationally, and this kind of behavior is the
basis of the legal system.

Consistency in reasoning is the basis of the
precedent system of law.

In order to preserve justice we must treat similar
cases similarly and this is just want analogical
reasoning attempts to do.

Legal realists viewed analogical reasoning as
infinitely malleable and therefore scorned the notion
that it could restrain judges from doing as they pleased.

What is the limitation of reasoning by analogy?

The limitation of the analogy is that someone else may be
able to identify relevant differences (i.e. distinguish the

Law school taught me one thing: how to
take two situations that are exactly the
same and show how they are different.
- Hart Pomerantz.