(ii) Where you have no case on point

Where you have no binding precedent to which to turn, you can use several other lawyering tools: 'In short, when a lawyer says of his case, "There's no law on it", he reveals not so much the paucity of available material as the limitations of his own professional capabilities.'317

For example, where you have no binding precedent, try:

  • apt analogies318
  • case synthesis319 (for example, 'The decided cases have evolved to a general principle that covers my case')320
  • a nonbinding precedent from another jurisdiction, lower court, an administrative agency, etc321
  • first principles322
  • enlisting a rule's reason to carry the rule into novel territory323
  • basing a rule on 'common knowledge' and 'common sense'324
  • introducing a new rule or principle from the critical literature325

317 Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 149.

318 An analogy is 'a demonstration that two situations are so parallel that the reasoning that justified the decision in one should do the same in the other': Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy (5th ed, 2005) 165. One reason lawyers may miss an apt analogy is that the amount of law is 'now so large that, with the inevitable specialization that follows, the current thinking of many if not most practitioners is marked by too much compartmentalization, and far too little cross-fertilization' (Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 150).

319 Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy(5th ed, 2005) 167–8.

320 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008).

321 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008). Richard K Neumann Jr, Legal Reasoning and Legal Writing: Structure, Style, and Strategy(5th ed, 2005) 152–3; Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 90; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 175–81 (use of administrative materials).

322 Paul Perrell, 'Stare Decisis and Techniques of Legal Reasoning and Legal Argument' (1987) 2(2, 3) Legal Research Update 11 reproduced at http://legalresearch.org/docs/perell.html (accessed 27 January 2008); Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 149 ('If you have nothing but logic and reasoning to support and sustain your analysis, by all means use logic. But usually there is available something more than simply your own process of reasoning').

323 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 90.

324 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 90.

325 Karl Llewellyn, The Common Law Tradition (1960, 1996 reprint) 91; Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (1961, 2001 reprint) 199.

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