Torts Evening - Fall 2007
Professor Ralph Brill
Course Information
Course Information


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Reasoning by analogy means that one attempts to show that the facts of the problem case are substantially similar to those in the binding precedential case.

This is a very common method of reasoning in everyday life:

For example, mother says older son may stay up til 10 p.m.

(A) Younger brother argues he should be able to stay up until 10 also, since they are both her children;

therefore they should be treated alike.

(B) She says: nope. Not a valid analogy.

There is a serious difference between them.

Older children need less sleep than younger ones, thus justifying a difference in rules.

So, argument is NOT VALID because there are significant differences in the two categories -- the two cases are “distinguishable.”

Modern examples: Some argued that President Clinton’s actions were “not just about sex”, but constituted “obstructions of justice,” just as former President Nixon’s actions were. They assert, both Nixon and Clinton lied about their conduct in trying to cover up improper conduct, and Clinton even did it under oath.

The counter-argument others made is that Nixon’s lies were in an attempt to cover up criminal action, break-ins, destruction of property, and other acts related to abuses of presidential power or abuses of the presidential office, etc., whereas Clinton’s related to consensual sex, were not an abuse of presidential power, and everyone lies about sex, so that his acts did not rise to an impeachable offense.

If Bush allegations of the need to invade Iraq based on its having “weapons of mass destruction” and “having ties to Al Quaida” turn out to be knowingly or negligently untrue, where would Bush’s statements fall? They were not under oath, but involved incredibly serious acts of sending troops into a war, death of soldiers, Iraqi civilians, and others, expenditure of billions of dollars in taxpayer money, etc.

So to reason by analogy, you must:

(1) establish the relevant base point – the relevant facts plus what action should then be taken. “If this is true, then.... “

(2) Then one must describe the factual respects in which the base point situation and the problem situation are similar (ANALOGOUS), or how they are different (DISANOLGOUS).

(3) Third, you judge whether the factual similarities or the factual differences in the two scenarios are more important under the circumstances.


In the first example, which is more important -- the “status as one of his mother's two children” or “the age of each child”?

∙ If the child’s status as one of his mother's children, a co-equal, is more important than age, the younger brother’s bedtime should also be 10 p.m.;

∙ if age is more important, the disanology suggests that an earlier time would be justified.


Context is important.

A difference in age between the brothers would be very important for choosing bedtime when they are 9 and 6, but would not be so important when they are 16 and 13.

Different Context.

When the purpose is to determine what kind of Xmas present each will get, there will be a contextual difference when they are ages 2 and 5 from when they are 13 and 16.

Again == a difference in context makes more or less important the difference in facts.

So, for analogizing it is important to determine:

(1) the importance or unimportance of the base point,

(2) factual similarities or differences in the two situations, and

(3) the relative importance of these similarities or differences in the context in question.

Using Analogies In Legal Reasoning

For legal analogical reasoning, one first must determine the base point.

In law, the base point is what the binding precedent is.

For that, we look to the source of law: Constitution? Statute? Administrative Regulation? Common Law decision?

1. For Constitutions, Statutes, and Administrative Regulations, the usual question is the meaning of the section in question, a matter of interpreting the words used, sometimes with the aid of some other aids to determining intent, such as legislative intent, debates, maxims of construction, etc. The goal is to determine whether one's facts fall within the meaning of the constititutional, statutory or regulatory provision.

2. If there are no constitutional provisions, statutes, or administrative rulings that control, the binding precedent will be case law.

To determine which case law, we have to go to stare decisis and its qualifications .... holding and dicta, highest court, not overruled, etc. (Discussed in Legal Writing)
What is the holding that is binding on subsequent cases?

Assuming one side is arguing that a doctrine of law established in a specific case is binding in our new case, the key question becomes “were the facts in the binding precedent the same or substantially the same as the case before us now?” That is, were the facts “analogous” or “disanalogous?”

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 controlling):
∙ if the facts are substantially dissimilar, or
∙ if the context is dissimilar.

So, in reading cases, the facts become very, very important. When doing legal research, you will read cases with the problem case in mind. You will always ask yourself whether the facts in the possibly controlling precedential case were sufficiently analogous to your case, and thus determinative of the outcome of the problem case you are researching, or whether they were distinguishable, and not controlling of the outcome.


(The following examples are loosely based on examples used by Prof. Steven Burton, in his book on Legal Reasoning)

Case 1. Abbott stole Costello’s bike and sold it to Hale, who knew that it had been stolen.
Costello sued Hale to recover the bike.

Outcome: Costello wins.

Case 2. Abbott bought Costello’s bike, giving as payment counterfeit money. Abbott knew it was phony money.

Costello discovered the fraud and sued Abbott for the return of the bike.



Outcome: Costello wins.

Case 3. Similar to Case 2, Abbott obtains bike by fraud, misrepresenting some important fact that induces Costello to part with title to the bike --
except before Costello can sue to recover the bike, Abbott sells it to Hale, who does not know of Abbott’s fraud, and Hale pays Abbott the market value of the bike.

Costello sues Hale for the return of the bike. Who wins?

Answer: Hale.


Why isn’t Case 3 controlled by the first two cases?

Don’t the first two cases stand for the proposition that a person who dishonestly acquires possession of another’s property does not acquire ownership rights in the property?

What is different?

One possibility is that the Court may say that the base point fact of the defendant’s innocence is important and is different in case 3 from cases 1 and 2.

That is, one could claim the two cases are distinguishable because in the first two cases, the fight was between the innocent owner and the wrongdoer, the thief or the defrauder, and in the third it is between two innocent persons.

In the present case, the fight is between the innocent owner and the innocent buyer. So, one could allege, that's what make cases 1 and 2 distinguishable and not controlling on case 3.

Then comes Case 4. Similar to Case 1,

Abbott steals Costello’s bike, except that, like Case 3, before Costello can sue for its return, Abbott sells it to Hale. Hale is unaware that it was stolen, and pays Abbott its full market value. Who wins?
Answer: Costello.

(????) Seems wrong, doesn’t it?


What is different?

Didn’t Case 3 say that where property is dishonestly acquired, title may nevertheless be transferred to a good faith purchaser for who was unaware of the dishonest acquisition?

So what other distinction can we draw that would explain the outcome in Case 4, as well as the outcome in Case 3?

Well, in Case 1, there was theft (the bike was stolen);
in case 2, the property was obtained by fraud (it was obtained through misrepresentation).

Those are differences in facts.
But are they important differences? And if so, why?

What difference? Both dishonest; both probably criminal.


But in the case of theft, Costello never intended to transfer title to Costello; the property was taken without Costello’s knowledge and without Costello’s intent to pass title.
That means that no title ever passed, and Abbott acquired No Title.

Or stated differently, he acquired a VOID TITLE.

And he couldn’t pass on to someone else a better title than he himself had.

In the case of fraudulent inducement (cases 2 and 3), Costello did intend and act to transfer title, although the owner was misled by Abbott’s fraudulent inducement.

So, Abbott did acquire title, though it was a VOIDABLE (as opposed to VOID) title;

What does that mean?

That is, Costello could have sued for the return of the bike (or decided not to), but in the meantime Costello transferred some actual legal title to Abbott, even though it was, at Costello's option and action, voidable.

If Costello acted fairly quickly, while Abbott still had the bike, then Costello could “avoid the title” and get back the bike, as in Case 2.

But if, before Costello acted to avoid the title, Abbott sold it to an innocent buyer, who paid full value (a Bona Fide Purchaser), the title that he had transferred to the BFP, and became good title. It no longer could be “avoided.”




Case 5: Same as Cases 3 and 4 -- (Abbott obtained it by fraud), -- except Hale was aware of the circumstances by which Abbott had acquired the property -- that is, Hale was aware that Abbott had committed fraud to acquire the bike. Costello sues Hale for the return of the bike. Who wins?
Costello wins.

Why is this different?

Here, the buyer is not a Bona Fide Purchaser for value. He knows that the property was obtained by fraud. So he steps into the shoes of the seller. The seller, Abbott, had only a voidable title, and it does not become a vested title in Hale because he's in the same shoes as Abbott. So, Costello avoided Abbott's, and therefore Hale's, title by the suit for the bike’s return.

The same would be true if Hale had not paid Abbott a reasonable price.... close to market value....for that would put him on notice that something wasn’t Kosher.... there too, he would not be a BFP, and would not acquire good title from Abbott.



In Torts, we will be analyzing the Tort of Battery. As we will then see, it is committed if one intentionally causes harmful or offensive touching to a person, or some extension of that person’s person.

Assume, in some of the precedential cases, the defendant knocked a plate or some other object out of someone’s hands or grabbed the collar of his jacket or some other article of clothing plaintiff was wearing, and in each case the court ruled that there was a battery.

On the other hand, in other cases, the defendant smashed the headlight of the car or otherwise struck the outside of the vehicle in which the plaintiff was sitting, and each court ruled that there was no battery to plaintiff.

In our problem case, the defendant slapped the rump of a horse on which the plaintiff was sitting, causing the horse to run, but not throw the rider.

To which case or cases is this situation analogous?


Is the horse’s rump more like the plate in one’s hand or the collar of one’s coat?

Can the plaintiff reasonably feel that her/his personal dignity has been invaded by defendant violently striking the horse’s rump?

Or is the situation more like the car in which one is sitting, where plaintiff is not close enough to the contact to reasonably feel like his/her dignity has been invaded?

So, reasoning by analogy is very important in the law....but it also is very uncertain. You must first determine the base point....the allegedly binding rule from the precedent(s). Then you identify the factual similarities and the factual differences between the precedent(s) and the present case. Then you judge whether the similarities are more important, or whether the differences are more important, and thus either follow or distinguish the precedent. However, judging which facts are more important is not easy, and subject to much disagreement.



This is reasoning from the specific to the general

– i.e., using information about a series of individual cases to reach a conclusion about the likelihood of the truth of a general proposition.


Analogies, which we just discussed, are a form of inductive reasoning in which you use information about a series of individual cases to reach a conclusion about the outcome of another case.

But inductive reasoning commonly may have the goal to formulate a general proposition from the specific cases.

And once you have the general proposition, you can then apply it to new cases by deductive reasoning, covered next.

To illustrate, we go back to the battery example.

In Case no. 1, the defendant knocked a plate out of the hands of plaintiff, and the court found there was a battery, an offensive touching of something logically an extension of plaintiff’s person.

In Case no.2, the defendant grabbed the collar of plaintiff’s suit, and the court found there was a battery of the plaintiff.

In these cases, the courts emphasized that battery is a dignitary tort, and the plaintiff could validly feel that his/her dignity was being invaded.

In Case no. 3, the defendant violently smashed the headlight of a car in which plaintiff was sitting, but the court said there was no battery of plaintiff, because the plaintiff’s person or a logical extension of his person was not offensively touched.

In Case no. 4, the court found that throwing a rock at a bus in which plaintiff was sitting might have been some other tort, but it was not a battery to plaintiff, who was not touched or harmed in any way.

In deciding whether there is a battery when defendant angrily slaps the rump of a horse on which plaintiff is sitting, one would synthesize the four cases above, by inductive reasoning.

How? Generalizing a proposition that would fit all the cases.

One could conclude that the general proposition is that “a battery occurs if the defendant intentionally causes offensive or harmful contact with plaintiff’s person, or some logical extension of that person, and that a logical extension of a person would be something in close contact with the person. or something so closely associated with the person, that he/she could reasonably feel that, by striking that object, the defendant was invading the plaintiff’s personal dignity. “

(As an aside, that language probably will not be found anywhere, in any of the cases. This is another example of the importance of analyzing and articulating the results and holdings of cases in your own words)

Having established a general proposition of law from the synthesis of a series of individual cases, no one of which probably states the proposition as such, we then can apply the proposition to our facts by deductive reasoning.



All of us use this form. Its essence is the syllogism. The classic example is:

All men are mortal.
Socrates is a man.

Socrates is mortal.


There is a Major Premise, a “all men are mortal.”

There is a Minor Premise, a, “Soc is a man.”

And if applied validly, there is a valid Conclusion, “Soc is mortal.”

If the major premise is true,
and if the minor premise is true,
the conclusion must be true,

so long as the syllogism is applied validly.

Here, there would be an invalid application if one concluded “Therefore, Socrates is all men.”

A syllogism can also produce an invalid conclusion when the meaning of words is changed from the major premise to the minor premise, as:

Major Premise: A foot has five toes.
Minor Premise: The distance is one foot.

Conclusion: The distance is five toes.


It also can produce an invalid conclusion if either the major premise or the minor premise is wrong.

Major Premise: A foot has 39 inches.
Minor Premise: The measurement of the door is one foot

Conclusion: The measurement of the door is 39 inches.

For Legal Reasoning, one must first establish the Rule. This may be from the constitution, a statute, an administrative regulation, treaty, executive order, or from the common law.

1. Carrying a Concealed Pistol is a Felony
John was carrying a concealed pistol

John committed a felony


2. Torturing a prisoner on the rack would be Cruel and Unusual Punishment

The Guards tortured the prisoner on the rack

The Guards inflicted Cruel and Unusual punishment on the prisoner.

3. A law enforcement agent’s use of an electronic listening device to overhear a suspect’s private conversations constitutes an unreasonable search and seizure

The law enforcement agent used an electronic listening device to hear X’s private conversations

The law enforcement agent committed an unreasonable search and seizure.

The syllogism can also be used to prove that something is not true.

If the major premise (the rule) requires something to be true or something to occur,
and the minor premise (the facts) shows that the required conduct is not true or did not occur,
the conclusion must be that the major premise was not fulfilled.

1. To be enforceable, a contract for the sale of goods for a price of $500 or more must be in writing.

The oral contract for the sale of these goods was not for $500 or more.

The contract in this case was not enforceable.

Of course, the facts may be subject to dispute. But if the rule is established, such as in a statute, then the parties know what facts have to be established in order to make the rule applicable. In the above example, the fight would be on whether the contract was for $500 or more, or not. Often, one develops the rule...the major inductive reasoning, and then applies it to the facts by deductive reasoning.

In our battery example, by analyzing and synthesizing a number of cases, one concluded that the basic rule is

Major: The defendant commits a battery by intentionally causing harmful or offensive contact to something in close physical contact to the plaintiff or closely enough associated with plaintiff that plaintiff could validly feel that her dignity was being invaded.

The horse on which plaintiff was sitting was in close physical contact to plaintiff’s person, so that the plaintiff could validly feel that defendant striking the horse’s rump was an invasion of plaintiff’s personal dignity


The defendant committed a battery by causing offensive contact to the horse on which plaintiff was sitting.


The owner of property which has been stolen from him is entitled to recover the property from a bona fide purchaser from the thief, but may not recover the property from a bona fide purchaser from a person who obtained property from the owner by fraudulent inducement

Defendant Hale was a bona fide purchaser from Abbott, who obtained the property from the owner, Costello, by means of fraudulent inducement


Costello, the owner, cannot recover the property from Hale.


One of the major purposes of law school is to hone your skills at legal reasoning.

You will constantly be using inductive reasoning, analogizing, synthesizing, and using deductive reasoning, in your daily class discussions, in your legal writing assignments, and on your examinations.

Your legal writing teachers will soon be talking about methods of organizing memoranda of law.

Later in the semester, I and others will talk to you about exam taking.

At that time, if not before, you will hear a lot about the IRAC method, for organizing legal writing memoranda and for organizing law school examinations.

IRAC is nothing more than a synonym for the syllogism. The following example is a bit over-simplified, and you would be expected to expand on your discussion of each of these parts a bit on a real exam or in a real memo, but it illustrates the idea.

The I stands for “Issue”.
In a memo, it may be the Question(s) Presented; On an exam, you would begin by saying “the first issue is whether, by striking the horse on which plaintiff was sitting, the defendant committed a battery to the plaintiff.”

Next, R stands for Rule(s). (Or, in the syllogism, the Major Premise).
Here, it would be something like:
“A defendant commits a battery by intentionally causing a harmful or offensive contact to the plaintiff’s person, or to some object or thing in close contact with plaintiff’s person or closely enough associated with plaintiff’s person that plaintiff can reasonably feel that his/her dignity is invaded by the contact.” {This could be done on an exam or in a memo in several words or after several paragraphs of analysis and discussion}

A then stands for Application...i.e., application to the Facts.
“Here, the plaintiff was sitting on the horse, and it was (or was not) so closely in contact with plaintiff’s person that plaintiff could reasonably feel that his/her dignity was being invaded.” {and some elaboration on why you think it was or was not closely enough associated}.

C then is the Conclusion.
“Therefore, the defendant did (or did not) commit a battery when he offensively struck the rump of the horse on which the plaintiff was sitting.”

So, let’s go through another example:

Case 1: D calls his daughter to him, gives her a key to a safety deposit box, and orally says “I give you all the contents of the box. I want you to have all of my money.” The court discusses the law of gifts, defines the three requirements

(1) donative intent, which it defines as the intent to give the property away, as opposed to an intent to loan it to another, or to give it as security for a debt, or some other kind of transaction. Here, the donative intent was established by the donor’s unambiguous words, “I give you.... I want you to have.”

(2) delivery of the subject of the gift. The court explains that the normal rules requires that the subject of the gift be physically handed over, a so-called “manual tradition” of the property, to the donee. However, it goes on, in some cases, where the subject of the gift is too large or bulky, or is located far away, the delivery may be constructive, by the donor releasing to the donee the sole means of obtaining the gift, such as by a deed, or by a key to the safety deposit box. The donor, however, must not retain any control over the subject, such as by retaining a second key. Here, the court found that the delivery requirement was met by giving the only key to the safety deposit box to the donee.

(3) Acceptance of the gift by the donee. Normally, this would be implied if the gift is beneficial, and there are no words by the donee rejecting the gift. Here, the court found no words rejecting the gift, and found that acceptance therefore was to be presumed.

In case 1, the court found the gift effective.

Case 2, the donor said to a friend, “I’m not feeling well. In case something bad happens to me, I want you to go down and clean out my safety deposit box, so the government doesn’t tax it til there’s nothing left. Then make sure the right people get it.” He gave the friend the lock box key. When he recovered, and asked for it back, the friend refused to give it to him, claiming he was a donee of a gift of the contents. The court found there was no gift, because there was no donative intent.

Case 3. The alleged donor gave the alleged donee a key to a safe, located in his office. However, he retained a copy of the key himself. Moreover, he could have opened the safe and given the contents directly to the alleged donee. The court found that there was not a valid gift, because of insufficient delivery.

Cases 4, 5 and 6. Etc. Etc.


Problem Case: Sick man calls his nephew in. Says he doesn’t think he’s going to live. “You were always my favorite. I want you to have some money. I have it buried in back of my farmhouse down near Carbondale. Here’s a map on how to find it. It’s in a sack buried next to an old Oak tree.” The nephew thanks him, although he tells the man that he’s acting prematurely, since the nephew is certain the illness is not life threatening, and that the uncle will soon recover.

Focusing on one of the issues, delivery: What would be the rule to be applied?

By inductive reasoning from the cases, one could generalize that 1. Delivery is required to effectuate a gift. 2. Ordinarily, delivery requires the actual handing over of the subject of the gift. 3. But an exception exists, when the subject of the gift is too large or bulky, in which case giving the recipient the means of obtaining the gift is sufficient, so long as the donor gives up the means him/herself. 4. The exception also exists where the subject of the gift is located far away, and the donor gives the donee the exclusive means of taking possession of the subject of the gift.



So, what are the issues?

Did one of the exceptions apply?
Did the donor give the donee the means to obtain possession of the subject of the gift?
Did he surrender possession or the means of taking possession himself?

Each of these would lead to a syllogistic analysis.

To be valid, the subject of the gift must be physically delivered by the alleged donor to the donee.

Uncle did not physically deliver the subject of the gift to Nephew

Unless one of the exceptions applies, the gift was not valid

One exception is that delivery is valid if the subject of the gift is too bulky or heavy to be physically delivered.

There is no showing that the subject of this alleged gift was too bulky or heavy for actual delivery

This exception does not apply

Another exception is that delivery is valid if the subject of the gift is located at a great distance so that it cannot be physically handed over, and the alleged donor gives to the alleged donee the exclusive means of obtaining control over the subject, such as by the only key to a safety box

The donor gave a map showing the location of the subject of the gift, but did not relinquish complete control since he retained the knowledge of the location


The delivery was not valid.




Another exception is that delivery is valid if the subject of the gift is located at a great distance so that it cannot be physically handed over, and the alleged donor gives to the alleged donee the exclusive means of obtaining control over the subject, such as by the only key to a safety box

The donor gave the donee the means by which he could take possession of the subject matter of the gift, a map showing where it was buried, and did not retain a copy of the map, thus relinquishing any control over the subject of the gift.


The delivery was effective.