Mitchell Johnston (Boston College – Law School; Yale University, Law School) has posted A (Partial) Defense of Balancing on SSRN. Here is the abstract:
Balancing tests the bête noire of those committed to a rules-based jurisprudence. Because comparisons between factors are impossible, critics allege that balancing “tests” are ultimately a fig leaf for the judge’s preferences. Justice Scalia famously was a critic of balancing for, in part, this reason and, therefore, it is no wonder that the current Supreme Court is keen to suggest that it is abandoning balancing as fast as it can.
This Essay argues that this view of balancing is too negative. This view of balancing relies on a mistake (or perhaps a misapprehension) that balancing tests must operate as an algorithm that converts cases into results. I argue, to the contrary, that balancing is better seen as a structured approach to comparisons between cases, a model this Essay terms balancing-as-resemblances. Once this reframing is performed, the merits of balancing (as well as its limitations) emerge more clearly, a point the Essay develops through the hypothetical attempts of the schoolyard Council of Wisest Wizards to determine who can be a member. Moreover, this model suggests a connection between balancing and the problem of moral uncertainty that would allow solutions to the latter problem to lend additional structure to balancing. And the Essay extends these insights to provide a (partial) answer to critiques of pluralistic theories (theories that call for the consideration of multiple, incomparable sources of evidence) by proponents of monistic theories (such as textualism and originalism) that their theories are inherently indeterminate.
The Essay concludes not that balancing is perfect—it isn’t—nor that it belongs in all the places it is found—it doesn’t—but that it has its place in the toolbox of doctrine as a middle ground between rigid multi-step tests and rules and pure analogical reasoning.