February 14, 2008: Today's rant to my students about the proper use of case law in brief writing:
- Precedents are, first, illustrations of the ways the rules have been applied by courts to reach the conclusion you advocate. Thus, the most important thing about a precedent is, first, its facts and its result. Then, you can explain why that result makes sense. Those explanations can come from the case, from another source, or even from your own brain! The important thing about any explanation is this: is it a persuasive explanation?
- Then you apply that reasoning to explain why the result you are advocating in your case makes sense. That application extends the reasoning supporting the precedent to your case. The extension of that reasoning may be by analogy. It may be by explaining how the public policy supporting the precedent also applies to the situation in your case. It may be by explaining how the morality underlying the precedent applies in your case. It may be by explaining how economic efficiency rationales supporting the precedent apply in your case. Or it may be simply by explaining how common sense explains the result in the precedent and in your case. There may be several explanations. Again, the most important thing about the explanations is this: do they persuade?
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