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Mark Cooney
ABSTRACT: This article looks at legal analogy from a different perspective. Experts often present analogy through the lens of precision, focusing on a comparison of particulars. But astute advocates also use vagueness to draw analogies. My focus here is on this advocacy technique: the lawyer’s use of what I call vague analogical categories, sometimes in subtle ways, to alter perceptions. A litigator’s life is not a steady stream of perfectly on-point cases with ready application. Stepping back from the minutiae and taking a vague macro look at a case can yield potentially persuasive comparisons to precedent cases. And on a micro scale, lawyers can suggest or reinforce analogies by choosing language that’s imprecise enough to logically encompass otherwise distinct facts. These vague categories can reveal latent similarities and smooth over superficial or troubling factual differences, sometimes multiple times in the same sentence. Thus, although vagueness is often described in pejorative terms, it is, for the shrewd advocate, a sharp piece of rhetorical weaponry.