3.2.4 USING THEABSTRACTIONLADDER INLEGALRESEARCH
The good news is that if you move high enough up the abstraction ladder, you can almost always identify some connection between two sets of facts. For example, you could analogize a cow to a horse because they are both farm animals.
Or you could analogize a cow to a wheat field because they are both income-producing property for farmers. You could even analogize a cow to a tractor because they are both farm property. Or you could analogize a cow to a pet dog because both are mammals.The bad news is that after asking whether there is an analogy, you must then ask whether the analogy is legally significant. For example, if a rule governs licensing of pet dogs and cats, that rule probably will not apply to cows on a dairy farm, even though cows, dogs, and cats are all mammals. If, however, a common law rule governed additives to cow feed, you might be able to argue that this rule also should apply to fertilizers on wheat fields because both cow feed and wheat field fertilizer may affect food that consumers purchase. One hint about using the abstraction ladder: Try to go up (i.e., to a more abstract level) only as far as you need to go to find a legally significant analogy and no farther. For example, a goat and a cow are both mammals, and they are both farm property; their more legally significant connection in a given case, however, could well be lower on the abstraction ladder: They are both animals that produce milk that may be sold for human consumption.
Thus, before you start researching, look at your case and at your research question(s) and decide what types of authorities you’re looking for. If you were researching the Coors case, for example, you should plan what to do if you don’t find any cases dealing with regulation of beer labels. Going up the abstraction ladder, you might look for regulations about labels of any kind. Or going up farther, you might look for regulations about any kind of advertising.
But “any kind of advertising” might be too broad a concept. What is significant about beer advertising as opposed to the general definition of advertising? One obvious answer is that there are lots of restrictions on beer — as one of my students put it, it’s a vice that the government regulates. Thinking in terms of “vices” that the government regulates would broaden your horizons and motivate you to look for cases about regulation of advertising about liquor, gambling, smoking, or pornography because they are all legal activities subject to significant governmental regulation (“vices”).
Broadening your horizons in this way can make the research process easier because you will be more attuned to the cases that are relevant and helpful even though they are not 100 percent on point. By being more practical about the potential results of your research, you will be more likely to recognize relevant authorities.