Gionfriddo, Jane Kent

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Using Fruit to Teach Analogy

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Boston College Law SchoolDigital Commons @ Boston College Law SchoolBoston College Law School Faculty PapersNovember 1997Using Fruit to Teach AnalogyJane Kent GionfriddoBoston College Law School, gionfrid@bc.eduFollow this and additional works at: https://lawdigitalcommons.bc.edu/lsfpPart of the Legal Education Commons, Legal Profession Commons, and the Legal Writing andResearch CommonsThis Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in BostonCollege Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, pleasecontact nick.szydlowski@bc.edu.Recommended CitationJane Kent Gionfriddo. "Using Fruit to Teach Analogy." The Second Draft: Bulletin of the Legal Writing Institute 12, no.1 (1997): 4-5.A new conceptual issue arises: atort problem.  Here, the classrecognizes immediately that ourhouse has no rules to govern thesituation, but I tell them that thehouse across the street has had asimilar situation that has beendecided in a certain way.   Wethink about whether we like thatrule and its reasoning.  We talkabout whether our house has to dowhat the house across the streetdoes.  And we move intovariations on the idea of precedentand its limits through differencesin our facts as well as in what wewish to accomplish in creating ourown precedent.Then we set the house into thefictional “Hofstra” country with itssafeguards for individual rights.When a dispute arises, ostensiblyresolved by the rules, the defenseargues that “it’s a free country, Ican do what I want.” We talkabout how the Constitution canprevent legislatures from creatingunconstitutional rules and thatcourts are called upon to interpretand apply constitutionalprincipals.We finish the exercise with aburden of proof, fact/lawdistinction situation. Here, theperson appears to be caught red-handed possessing food in hisroom and is accused of breaking arule that requires food to be eatenonly in the kitchen.  A courtmakes a legal decision that therule does not apply to“possessing” food, only eating it.The “defendant” says that hebrought the food into his room, hedid not “eat” it there. But it ishalf-eaten, and some people saw itwhole while it was in his room.Who decides whether or not he“ate” in his room?  How does afact finder make such a decision?This exercise is fun.  It teaches thestudents a lot about the broadthemes of law and starts tointroduce them to some of itsvocabulary, but it accomplishesmore than that.  They come to lawschool expecting to be ignorant —they read cases they do notunderstand and get more confusedas they walk into many of theirclasses.   This exercise remindsthem that their lives before hereand the knowledge they haveacquired in those lives are usefultools for learning about law.   Theyalso learn that they can participatewithout peril — there is no casehanging over them that contains the“right” answers.   All they arebeing asked to do is think.  Byparticipating in the classdiscussion, they learn also aboutthe interactive nature of lawlearning.  Thus, the exerciseprovides a valuable tool for a firstlaw school class.Contact Donna Hill at<lawdlh@hofstra.edu> if you would like a copy of theexercise.Using Fruit to Teach AnalogyJane Kent GionfriddoBoston College Law SchoolOne of my very creativecolleagues, Lis Keller, came upwith the following exercise tointroduce students to the correctmethod of comparing precedentcases with the client’s case in anobjective memorandum.  We hadbeen frustrated that studentsseemed to think that comparing the“facts” of a precedent case with the“facts” of the client’s case, withoutmore, was sufficient.  Too often wewould get analysis like, “The courtwould view doing laundry in ourcase as similar to watching TV inthe case of ‘X.’” And as much aswe would tell students thatcomparing “facts” with “facts” wasjust the first step in predicting whata future court would do, they didn’tseem to understand what theproblem was.Of course, we had alreadydiscussed the analytical processthat students were doing in whatwe call the “application-prediction”section of an objective memo.  Wehad worked through the process inthe abstract and even in the casethey were working on.  “You’retracking the reasoning of the futurecourt,” we had said, “and to do thatyou must show WHY, using thecourt’s reasoning in prior cases,that the future court will view thefacts of precedent cases as similaror dissimilar to the facts of yourclient’s case.” But still studentsdidn’t seem to catch on.So Lis decided to come up with anexercise that would take thiscomplicated analytical concept andsimplify it.  She felt that a simpleexercise was a good first stepbecause it would help studentsintuitively see why a “facts to factsonly” comparison was analyticallyinsufficient.  “What about fruit?”she asked, and constructed thefollowing exercise.We come into class with fourobjects—a basket (my meagercontribution), and several real or-4-“silk” pieces of fruit—a GrannySmith apple (which, if youremember, is green), a MacIntoshapple (red), and a Bartlett pear(green).Holding up the MacIntosh apple,we say, “The court finds that thisobject belongs in the basket.”Holding up the Bartlett pear, wesay, “The court finds that thisobject does not belong in thebasket.” Then, holding up theGranny Smith apple, we say, “thisobject is now before the court.Predict: Will the court find that it‘belongs in the basket,’ or not?”Of course, given the simple andvisual nature of this demonstration,all students are immediately clearthat they can’t predict unless theycome up with the court’s reasoningconcerning why the MacIntoshapple did belong in the basket andthe Bartlett pear did not.  Was itconcerned about the color of theobject?  Then the court would viewthe Granny Smith apple as similarto the Bartlett pear and find that itdoesn’t belong in the basket.  But ifthe court’s reasoning was based onkind of fruit or shape of object,then it would view the GrannySmith apple as belonging with theMacIntosh apple in the basket.We’ve found that this exercise soclearly introduces this concept thatstudents are much better preparedto handle the more complicatedprocess of comparing the facts oflegal precedent to their client’sfacts in figuring out what a futurecourt would conclude for theirclient.  Moreover, the fruit exercisebecomes a wonderful vehicle as wegive written feedback to studentswho continue to make inadequatecomparisons in their memos.When the student writes, “doinglaundry in our case is similar to TVwatching in case ‘X,’” it becomesso easy to write, “but WHY?Remember the fruit.  You know youcan’t figure out whether the courtwould view a Granny Smith appleas like or unlike a Bartlett pearuntil you figure out what the courtwas concerned about—kind offruit, or color of object, or shape ofobject, or something else.  Thesame is true for ‘doing laundry’ and‘watching TV.’ Only the courts’reasoning in the precedent cases—’activities that go on inside ahome’—shows WHY the futurecourt could see ‘doing laundry’ and‘watching TV’ as similar activities.”The “fruit exercise” then becomes ashort-hand way throughout theyear, both in class and in writtenfeedback, to get students to thinkabout the analytical process theyare “capturing” in spelling out acomparison of precedent andclient’s facts in an objective memo.Drawing Persuasive Comparisons Ben BrownJohn Marshall Law School Drawing analogies is a verycommonsensical activity.  Since itseems so natural, students often failto make their analogies persuasiveby systema-tically comparing factsin their memorandums. They oftenrely on mere assertions to provethat their memo facts and theprecedent facts are comparable ordistinguishable. This exercise isdesigned to encourage a discussionabout what makes a factualcomparison persuasive.  Thisexercise is often most effectiveafter the students have attempted atleast one memorandum project.The ultimate lesson here is thatfactual comparisons, to bepersuasive, must be specific, directand comprehensive.  After eachexample in the exercise, Iencourage students to discuss thestrengths and weaknesses of theattempt to make a persuasivecomparison.Reasoning by Analogy: Sincereasoning by analogy is a uniqueway of deciding crucial issues, it isnot often taught.  As a legal writer,you need to give some thought tohow best convince a sophisticatedreader that your analogy is, indeed,sound.The basic rule is: The more direct,specific and comprehensive youcan make the comparison, then themore persuasive it will be.Example:I am trying to convince you that aprofessor’s commute to school islonger than a student’s commute toschool.First — I could just assert it.The professor has a longercommute then his student. Does this convince you?If I am in a position of power, youmight accept this statement as true;thus courts can get away with thistype of sloppy analogizing.  But ifyou have no compelling reason totrust me — that is, if you are askeptical reader as you mustassume all legal readers are — thenthe mere assertion will not sufficeto convince you of this proposition.Second — I could add somegeneral facts that support myclaim.Since professors make more moneythen most students, they can affordto live in the suburbs and thus takelonger to get to school.Generalities might add some-5-

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