Publication Date

2024

Journal

Michigan State Law Review

Abstract

Judicial balancing has been subjected to a standard list of objections for decades, without anyone's offering a comprehensive and persuasive response. This Article fills that gap. Balancing is not embedded in an invidious instrumentalism, such as utilitarianism, that saps law of its moral salience; it does not depend on the quantification or commensuration of manifestly qualitative legal interests; it is not arbitrary, result-oriented, or mere opinion; it does not invade the province of the legislature; and--most importantly--it does not risk balancing constitutional rights away by treating them as mere interests.

The defense consists of a model. Models do not prove; they explain. A model-based defense is, therefore, a burden-shifting defense. If balancing can be modeled in a way that obviates the standard objections, then the burden is on balancing's critics to show that their criticisms still stand.

The model of judicial balancing presented in this Article is based on an account of causal explanation in the sciences, known as a difference-maker account. A difference-maker account of causation is different from the counterfactual, but-for conception that lawyers use. The difference-maker account explains a phenomenon by eliminating some causal factors from the explanation, leaving only those necessary to represent it. A difference-maker model uses five connectives--inclusion, exclusion, abstraction, cohesive disjunction, and non-cohesive disjunction--to explain how the relevant causal factors are arranged to produce a minimum, maximally abstract explanation. This Article formulates a difference-maker model of Due Process balancing and uses it to provide a model-based, burden-shifting defense of the practice.

Volume

2024

First Page

875

Last Page

945

Publisher

Michigan State University College of Law

Disciplines

Law

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