Art of the analogy: 4-minute lesson featuring baseball & the late Justice Scalia

Posted on 03-18-2016 by
Tags: writing , Top Stories

The power of analogies lies in comparing two things for the purpose of persuasion. Part of this power erupts from the triggering of emotions, which affects decision making. Hence, the emotional power of analogies in arguments. Sigmund Freud, while a little soft on their power, said this about the emotional magic of analogies:

Analogies, it is true, decide nothing, but they can make one feel more at home.

Analogizing is an art, and in the law, it is a persuasive art. And in teaching this art, examples offer the best learning tools.  

Can Baseball Shape The Law of Golf?

Like a blitzkrieg, the late Justice Scalia offered a bombardment of analogies* in his dissent to PGA Tour, Inc. v. Martin, 532 U.S. 661 (U.S. 2001). In that case, Casey Martin, a disabled golfer, filed an ADA claim after the PGA refused his request for a golf cart. In finding for Martin under Title III’s public-place accommodation, the Court held that:

  1. competing golfers are members of the class protected by Title III; and
  2. allowing a golf cart would not "fundamentally alter the nature" of the game.

Scalia recognized the majority’s “benevolent compassion”** but disagreed with a compassion for which “the law does not place … within our power to impose.” In dissenting, Scalia unleashed a mountain slide of analogies against the majority. While I agree with the majority’s holding, Scalia’s dissenting analogies are entertaining, if not somewhat convincing.

Scalia aimed his first volley at dicta in which the majority reasoned that Title III applies to the "customers" of professional golf who consist of its practitioners (i.e., golfers). Scalia analogized:

The professional golfers on the tour are no more "enjoying" (the statutory term) the entertainment that the tour provides, or the facilities of the golf courses on which it is held, than professional baseball players "enjoy" the baseball games in which they play or the facilities of Yankee Stadium. To be sure, professional ballplayers participate in the games, and use the ballfields, but no one in his right mind would think that they are customers of the American League or of Yankee Stadium. They are themselves the entertainment that the customers pay to watch. And professional golfers are no different.

Scalia next attacked the majority’s holding that the PGA could not discriminate against any "individual" (Martin) in full and equal enjoyment of offered "privileges”. These “privileges” included Qualifying (a/k/a “Q”) School and playing in the tours, the former being a privilege “for which thousands of individuals from the general public pay ….”

Scalia’s attacking analogies:

But the Q-School is no more a "privilege" offered for the general public's "enjoyment" than is the California Bar Exam. It is a competition for entry into the PGA TOUR -- an open tryout, no different in principle from open casting for a movie or stage production, or walk-on tryouts for other professional sports, such as baseball. It may well be that some amateur golfers enjoy trying to make the grade, just as some amateur actors may enjoy auditions, and amateur baseball players may enjoy open tryouts (I hesitate to say that amateur lawyers may enjoy taking the California Bar Exam). But the purpose of holding those tryouts is not to provide entertainment; it is to hire.

Scalia was then left with the final “error”: the majority’s holding that the requested modification (not walking/riding in a cart) would not "fundamentally alter the nature" of golf. This, in part, hinged on the majority’s finding that the modification would not fundamentally alter the character of the competition. Again, Scalia carved out a baseball analogy:

In resolving that second step -- determining whether waiver of the "nonessential" rule will have an impermissible "competitive effect" -- by measuring the athletic capacity of the requesting individual, and asking whether the special dispensation would do no more than place him on a par (so to speak) with other competitors, the Court guarantees that future cases of this sort will have to be decided on the basis of individualized factual findings. …  One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son's disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)

Art and Power of Analogies

So what makes Scalia's analogies effective? According to Farnam Street, effective analogies are crafted by:

  1. Using the highly familiar to explain something less familiar.
  2. Highlighting similarities and obscure differences.
  3. Identifying useful abstractions.
  4. Telling a coherent story.
  5. Resonating emotionally.

This deconstruction seems a bit strict, if not overly academic. Still, checklisting these 5 points of craft can be helpful in penning a powerful analogy.  

Most important: understanding the basic engine of an analogy. Why do they work? The simple answer from Fast Company:

Analogies work because they make the unfamiliar familiar; they help the mind navigate new terrain by making it resemble terrain we already know.

A clear illustration of these two terrains? There’s Scalia’s comparison between disabilities in pro golf (new terrain) and baseball (terrain we already know). And then there’s this humorous analogy comparing cats and radios:

You see, wire telegraph is a kind of a very, very long cat. You pull his tail in New York and his head is meowing in Los Angeles. … [R]adio operates exactly the same way: you send signals here, they receive them there. The only difference is that there is no cat.***

For a deeper dive into analogies, read:

The Underused Writing Trick That Makes You More Powerful, Popular and Persuasive


*Some blur the lines between analogies, metaphors and similes. Others define “analogies” as comparisons via logical, complex arguments vs. “metaphors” and “similes”, which act as mechanisms – via figures of speech – to make comparisons.

**Scalia later cautions that his dissent “should not be mistaken for a belief that the PGA TOUR clearly ought not allow respondent to use a golf cart.”

***Sometimes attributed to Einstein, but this is questionable

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