Tort Bunnies: Sammich

June 07, 2010. The conversation afterwards went something like this:

Brown Rabbit: What kind of sandwich do you want?
The Judge: A ham sandwich.
Brown Rabbit: You're a rabbit. Rabbits don't eat meat.
The Judge: Well, evil rabbits do.

Anyhow, multi-factor balancing tests require a judge to weigh a number of different factors against each other. Copyright law's fair use test is one example of this. The good news about a multi-factor balancing test is that it awards the judge a lot of discretion. The bad news is that it awards the judge a lot of discretion.

In contrast to the bright-line categorical tests that formalists like Justice Scalia favor, multi-factor balancing tests tend to be much more indeterminate. For example, suppose our test for determining whether or not a bird is a duck is that we weigh (1) whether it walks like a duck, (2) whether it swims like a duck, and (3) whether it quacks like a duck. Suppose also that we come across a bird that kinda walks like a duck and sorta quacks like a duck but most certainly does not swim like a duck. One approach to this is that there are two factors in favor of finding the duck versus one against. Two is greater than one; ergo, it's a duck. Another approach is that since it only kinda sorta meets criteria one and three, we weigh those less heavily than criteria two, and find it's not a duck. Still another approach is to hold that regardless of how well it meets criteria one and two, the quintessential characteristic of a duck is that it quacks, so we always weigh criteria three more heavily than one and two. In this case, that means we have a duck.

You might respond that the real problem with the above example isn't that there's a multi-factor balancing test, but that there're no guidelines for how to balance the factors. Or that the factors themselves are indeterminate (i.e. to know whether or not something quacks like a duck, you need to have some sense of what a duck already is, but if you already have that, why do you need a test to figure out whether or not something's a duck?). Nevertheless, multi-factor balancing tests have a reputation (among law students at least) of suffering from both of these problems and for being indeterminate.

When you have an indeterminate test, the fear is that the judge might simply decide to make a ruling based on how tasty a sandwich is. That's pretty unlikely, as even if the law itself is flexible, judges are ultimately subject to other constraints (e.g. they probably don't want to be known as the "evil sammich judge"), but generally, people who fear judicial activism will push for narrower constraints.