What is a Balancing Test?

A balancing test is a judicial method of considering several different factors against each other in determining the fairest result for all parties. Balancing tests are typically used in cases where the fair result depends on several different facts that apply only to the present case. This line of analysis is different from a “bright line” test that articulates a clearly defined standard to apply to any situation it governs. Proponents of legal analysis through balancing tests argue that they have the benefit of allowing the judge to weigh any present factors carrying different importance, which generally leads to the most fair result.

A judge is most likely to employ a balancing test in a complex situation where an equitable result may only be reached through the consideration of several different factors that affect the parties in the present case. This method gives a high level of discretion to the judge in determining the outcome of the dispute. Therefore, there is often a higher degree of uncertainty in the parties who are litigating an issue to be decided by a balancing test than that of a bright line test. This uncertainty is the most common criticism of factor balancing legal analysis.

One common example of a balancing test used in United States law is in a request for an injunction on a business — i.e., a plaintiff is seeking the court to order the business to temporarily cease operations while some other ultimate issue is being decided. In considering an injunction, the court is said to “balance the hardships” of the two parties. More specifically, the standard used is that, if the injunction will result in a hardship to the company that will greatly outweigh the benefit of the plaintiff, then the injunction shall not be granted. It is entirely in the judge's discretion to consider the evidence and decide what the likely respective hardships will be and if they meet this standard.

Many people argue that using a balancing test allows for the greatest level of fairness to parties embroiled in a complex dispute. Entrusting the judge to use his or her prudence in weighing and considering all the present factors allows for the consideration of effects that would be missed in a bright line analysis. However, in addition to the criticism that balancing tests leads to more uncertainty in the parties prior to entering litigation, critics argue that this line of analysis puts too much of the judge’s subjectivity in the final decision.