What are some cool judicial tests?
March 18, 2010 10:47 AM   Subscribe

What are some judicial tests? I already know about the M'Naughten rules and the Product Test (for mental competence to stand trial), and the Lemon Test and Coercion Test (for whether school-led prayer violates the establishment clause). I love these. What are some other judicial tests? Where can I read about them?

I'm in the US, but I'd be curious to know about tests from other countries as well.
posted by mathtime! to Law & Government (17 answers total) 5 users marked this as a favorite
(Probably) the most important test in Canadian jurisprudence is the Oakes test. A bit of context.

Ok, the Charter of Rights and Freedoms is the equivalent roughly of your Bill of Rights. However, its first section is pretty much a limiting clause, saying that the rights are guaranteed subject only to "such reasonable limits as can be demonstrably justified in a free and democratic society". So rights are not absolute in Canada, it's part of the constitution.

The Oakes test is how to test that.
First of all, is it prescribed by law? So is the infringement of rights happening via legal authority at all? That's almost always met, of course.
Then the real test.

1. Is the objective "pressing and substantial"? Again, this almost always passes. The legislation (or whatever) is based on reality. Meh.

2. Then, there's a proportionality test. This has 3 components (nowadays)
a. Is there a rational connection between the law and the "evil" sought to be prevented by the law?
So in Oakes itself, there was an assumption that you were trafficking if you were found to have any pot on you, and the onus would be on you to rebut that. It's meant to make it easier to prosecute, which ultimate goal is to stop the evils of trafficking. This failed the rational connection - if I have a gram on me, it's irrational to suspect me of trafficking.

b. Does it minimally impair the rights?
This is where most laws that fail, fail. There can't be a better way (well, clearly better) to achieve the same objective (or at least a substantially close version of it).
So you can't ban all phone calls from prison because there were some bomb threats from prison. There are better ways of preventing those threats.

c. Are the restrictions proportional to the benefits?
The death penalty probably would fail under this part [although it was abolish by legislation before the Charter. While it could be argued that there's no better way to express condemnation of terrible acts (and thus it'd be fine under minimal impairment, maybe), it's not proportional. Nothing is on the same level as death, if you will.

In general, the burden is on the government to prove all of this - it comes after a claimant has proved that their rights have been infringed. It's justification for infringing rights.

It's a powerful test, and definitely one the more outstanding parts of Canadian jurisprudence.

And now I will get back to my human rights work. Thanks for the distraction!
posted by Lemurrhea at 11:05 AM on March 18, 2010

Come to law school and you'll learn about hundreds of them.

There's a legal concept called adverse possession, where you can gradually acquire ownership of someone else's property without their consent and without paying them for it.

Like, say, if I wanted part of my neighbor's lawn to be mine, so I treated it as if it were mine and started planting my flowers there. If I planted my flowers there long enough, under common law, the land could be mine as long as I had possessed it in a way that was:

-Open and notorious
posted by Ashley801 at 11:23 AM on March 18, 2010 [1 favorite]

The "minimum contacts" test, testing presonal jurisdiction, is another example. It's really important in american law, and best of all, it comes from a case named International Shoe. I love the fact that a major piece of jurisprudence is referred to as "international shoe".
posted by HabeasCorpus at 11:27 AM on March 18, 2010

The 17 U.S.C. 301(a) Wainwright test for preemption. The Blockburger test for double jeopardy. The Younger abstention doctrine test. The Chapman-Harrington test for harmless error.

There are dozens if not hundreds of these. How many do you want?

I love the fact that a major piece of jurisprudence is referred to as "international shoe".

You should check out some patent law some time. There's a long serious of fairly important cases called Juicy Whip v. Orange Bang.
posted by jedicus at 11:34 AM on March 18, 2010 [1 favorite]

Daubert test for whether scientific evidence is actually scientific enough to be admitted into court.
posted by Maias at 11:38 AM on March 18, 2010

Response by poster: Thanks everyone, these are great!

jedicus - I'm interested in as many of these as you think are particularly interesting or influential. Definitely subjective, but there you have it.
posted by mathtime! at 12:05 PM on March 18, 2010

Okay...The Rogers for Indian status. The plain error test. The strict and intermediate scrutiny tests. The Southern Machine and Calder-effects tests for personal jurisdiction. The most-significant-relationship and governmental-interest tests for choice of law. The Howey test for "investment contracts" under securities law. The Strickland and Cuyler tests for ineffective assistance of counsel. The Central Hudson test for restrictions on commercial speech. The Watchman test for identifying a dependent Indian community. The Hunt test for the standing of an organization to bring a suit on behalf of its members. The Feist test for copyrightable subject matter.

Seriously, this could go on all day.
posted by jedicus at 12:19 PM on March 18, 2010

Some of the most important tests go to constitutional violations -- typically whether a statute violates a fundamental right under the Due Process or Equal Protection clauses of the Fourteenth Amendment. To simplify, there are three levels for this test: Strict scrutiny (the hardest test for a statute to pass), intermediate scrutiny (not quite as hard), and rational basis (whereby almost any justification will work except for pure animous). Some cases also apply a version of rational basis "with teeth" (see Romer v. Evans).
posted by mikeand1 at 12:36 PM on March 18, 2010 [2 favorites]

Are you interested in these tests because they are judicially created or because they are fact intensive?

Here are some tests that come to mind: Like everyone else said... there are lots of tests out there. Some are interesting, some are significant, some are obscure, and many are just confusing.
posted by stop sign at 12:58 PM on March 18, 2010

Knowledge/Timing Test in retaliation cases.
posted by Ironmouth at 1:11 PM on March 18, 2010

Go to an online repository of law school outlines, command-F for "test," and knock yourself out!

If you are looking for a good hornbook on US Constitutional Law, I recommend the Chemerinsky one. It's long but very readable, and you'll learn about the evolution of such pretties as the Brandenberg Test and such things.

Further, Cornell Law has a delightful website. Searching for "test" gives you a panoply of answers.
posted by Sticherbeast at 1:19 PM on March 18, 2010

Where can I read about them?

I mostly disagree with the political views of most of the regular contributors, but there is a lot of discussion about and analysis of case law (which is generally where these tests arise) at The Volokh Conspiracy.
posted by iknowizbirfmark at 1:40 PM on March 18, 2010

Not quite a test, but still possibly interesting, is the eggshell skull rule.
posted by mhum at 2:54 PM on March 18, 2010

Wednesbury unreasonableness
posted by patricio at 3:17 PM on March 18, 2010


Seriously. Find a leading case on a topic that interests you, and sure as hell tests of all sorts will be discussed (often, very lucidly).

The judge(s) will consider competing tests; affirm, tweak or overrule previous tests; create new tests etc. etc.

As to how to find a leading case...for England and Wales (which has some bearing on other common law jurisdictions such as the US, but obviously less so as time goes on) try here.
posted by djgh at 3:23 PM on March 18, 2010

Some great stuff above. I would, however, like to point out The World Famous's observation that this is a really broad question, and that Ashley801 and jedicus are right in that there are literally hundreds of these. Wikipedia's articles on landmark cases will probably help you out.

I'd also like to add the Miller test for obscenity, and that United States v. Forty Barrels and Twenty Kegs of Coca-Cola is but a hair short of United States ex rel. Gerald Mayo v. Satan and His Staff for my favorite case name. (Quoth the latter: "We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.") Oh, and that in law school, I used "Transgalactic Boot" in a civ pro hypo once. And that IANYL, just to be on the safe side.
posted by tellumo at 9:10 PM on March 18, 2010

English law (along with most common law jurisdictions) makes extensive use of the 'reasonable person' test - for example, you would have been negligent in performing activity A if you didn't take the precautions that a reasonable man would have taken in doing that activity.

Semi-arcane legal trivia point of interest - in older UK case law, the reasonable person is sometimes referred to as 'the man on the Clapham omnibus'; at that time, Clapham was a fairly dull commuter suburb, whose denizens presumably represented the ordinary reasonable person.
posted by inire at 5:07 AM on March 19, 2010

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