Balancing test

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A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright-line rule can allow. But critics say that such tests can be used to justify any conclusion which the judge might decide upon.

In the United States (US), many legal issues which had previously been considered settled by the imposition of bright-line tests through Supreme Court precedents have been replaced by balancing tests in recent years.

[edit] Examples

One balancing test from US administrative law applies to the question of due process, a consideration arising from the 5th and 14th amendments to the constitution. This balancing test, which first appeared in the case Mathews v. Eldridge (424 U.S. 319 (1976)), weighs the considerations of;

1. Private interest effected by an official action taken by a government agency, official, or non-governmental entity (company) acting as a governmental agency
2. The risk of some deprivation being erroneously inflicted on the respondent through the process used or if no process is used.
3. The government’s interest in a specific outcome.

Another balancing test occurs in the copyright domain, when analyzing whether a particular usage of a copyrighted work constitutes "fair use". The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) Article 13 allows for uses "which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." This three-part test is also called the Berne three-step test. (The rule in the US is somewhat different. See the relevant US Copyright Office Bulletin).

Other balancing tests appear in these legal cases:

• International Shoe v. Washington, 326 U.S. 310 (1945)
• U.S. v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947) Hand Test
• Rochin_v._California (1952), "shocks the conscience"

[edit] External link

• Legal Theory Lexicon Discussion of the nature and function of balancing tests.