Students tend to struggle with the transition from learning legal rules to applying them. This is even true at the bar exam stage. I am teaching a course on performance tests this summer, and a recurring theme I have seen is that students are not fully harnessing the power of analogic reasoning in their responses.
We all know that students come into law school believing that legal reasoning is about memorizing doctrine. But, as we help guide them towards a career as an attorney, we emphasize that legal analysis depends on the ability to recognize similarities and differences between situations. At its core, legal reasoning is often reasoning by analogy.
Despite its emphasis throughout law school, students can still struggle to engage with analogic thinking in a way that translates into their writing. Some students claim they were never taught about analogic reasoning. Others think they are doing it properly but are falling short. Thus, as students move toward the bar exam and practice, it becomes important to emphasize analogy.
Why Analogy Matters
We all know that the legal system relies heavily on precedent. Courts decide new disputes by asking how the case is similar to or different from a prior case and determining to what extent those similarities or difference matter. This reasoning requires more than just identifying facts. It requires the court (and the lawyers) to exercise judgment on how they distill the pertinent information of the case.
Students, as a result, must learn to determine which facts are legally significant so that they can better draw those analogies. A student may recognize that two cases involve negligence claims, but they need to look deeper to identify the underlying principles that make one case persuasive and another distinguishable. Teaching analogy helps students bridge this gap.
The Novice-to-Expert Difference
By the time students are ready to graduate, take the bar, and enter the workforce, we want them to be near experts on legal reasoning and analysis. They will certainly refine their reasoning in practice, but their reasoning must at least be minimally competent for bar exam purposes. As a result, students must understand what expert legal reasoning looks like.
Experts naturally categorize problems based on deeper structures. While a novice might look at two negligence cases and compare the type of injury, location of the accident, or the identities of the parties, an expert would be more likely to focus on the legal principles and how the underlying facts influenced the final outcomes. This distinction helps explain why students may struggle with application in law school exams. They are seeing the facts but not always recognizing the legally meaningful relationships between them.
Making Analogical Reasoning Visible
So how do we help students navigate the novice-to-expert transition? One of the simplest ways to teach analogy is to make the process explicit. For instance, when talking about case law, asking “why does this case matter for future disputes” rather than “what happened in this case” can help keep the focus on how the case law relates to our broader legal thought process.
In the context of working with more advanced students, I find it helpful to emphasize the role of prediction when working with case law, particularly in the performance test context. Asking students not only to explain the court’s reasoning, but to predict how they will use it in their written work product, helps make the analogic process clearer.
Modeling analogy also helps students better understand their goal. I have had some of the best breakthroughs with students when I work through a performance test with them and narrate my thought process as we read and outline. With students at any stage, modeling how we draw comparisons illustrates the thought processes for which they should aim.
Using Comparison Exercises
For students who are early in their legal education or who need additional guidance, I also like to use comparison exercises, since analogy develops through comparison. A good exercise is to present students with two or three related questions. Then, ask them to identify which case would be strongest for a plaintiff versus a defendant and why; which facts mattered the most; and which differences would be legally irrelevant. By switching from reading individual cases to comparing cases, students are better able to reveal patterns in the case law that would help in their application.
Connecting Analogizing to Exam Writing
Since I, like many others, am in bar exam mode, my focus is how to transfer the skill of analogizing to my bar takers. For some of my students, their performance test answers lack the depth of analysis because they are not fully connecting the provided cases to the facts in front of them. They understand the legal rules they should extract, but they are not using the cases to their fullest potential.
I have found it helpful to encourage students to think of their exam essay as a conversation using the prior cases. For instance, if they were writing a performance test that asked for a motion for summary judgment, I would want them to consider which provided source best supports this argument and why; which provided source creates tension and why; and how should the court compare these situations for my client to succeed? When students see analogy as the engine driving legal analysis, their writing becomes more sophisticated and persuasive.
Final Thoughts
Legal reasoning is not simply the application of rules to facts. It is the process of understanding how new situations relate to old ones and persuading others that those relationships matter. The ability to reason by analogy sits at the heart of that process. When we teach analogy explicitly through comparison, distinction, reflection, and practice, we help students move beyond memorization and toward the kind of analytical thinking that defines successful lawyers.
(Dayna Smith)
