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Culture War Roundup for the week of December 12, 2022

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Anyone want to talk about test cases? Rosa Parks' name has come up again to remind us that there is a group of people who didn't know the incident was staged by the NAACP as a way to put segregation on trial. I hope that everyone knows test cases are a thing and I'm a little curious what percentage of the famous judicial cases this would apply to. I guess it tarnishes people's fuzzy feelings about the scrappy individual with pure motives facing off against evil oppression but it doesn't change the facts of the case. Personally I have the impression that the judicial system is skewed against the poor and un-savvy and rewards those who have resources behind them and know how to work the system. So it does seem to the outsider as if everyone could benefit from having an organization behind them to raise attention and mount a strong defense. Rosa Parks may have been one person but her case ended up helping the many not-so-sympathetic individuals who were also victims of the unjust system. So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

So when you hear about a high profile case, does it matter if the person was specifically set up as a test case, and if it matters, why?

Not really. I mean, it's inevitable that a popular, sanitized version of the story is all the public generally remembers, but as you say, it's very hard to test a law all by yourself when you happen to be some random schmuck getting the law dropped on them. It usually takes an organization and a well-prepared legal team to pick and choose their battles, and the whole point of "test cases" is to test the law with the best argument against it.

This is true whether you are for or against the law being tested.

Good cases make bad law. Common law is meant to develop organically and so be optimised for the general case. Setting up specific test cases to force it in the direction you want is very much against the spirit of the thing.

This assumes that successful cases spring fully grown from the brow of Zeus, but that is not true. For example, Brown v. Board of Education was the culmination of a series of successful legal challenges to segregation in higher education, including Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Oklahoma, 332 U. S. 631 (1948); Sweatt v. Painter, 339 U. S. 629 (1950) and McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950).

If I understand you correctly, you’re saying that you need a ladder of successful cases to get you up to the point where significant precedents can be made. Your final case functions as the lynchpin of a long campaign, and you should therefore choose it meticulously. Is that about right?

Whereas my (idealistic) conception of common law is that low-level cases arise stochastically as the law meets the public. Precedent is therefore slowly formed, and the law slowly shaped, by the real effects of that law in relation to the broad mass of humanity. Cases at the higher level then codify and rationalise this consensus. In this conception, deliberately forming test cases is a sin because you are biasing your training data at the lower levels and distorting the results at the higher levels.

(I speak mostly in relation to the UK, which has no formal constitution.)

In the UK, class actions are extremely limited. So a "test case" normally refers to a typical case chosen by mutual agreement between the two "sides" of what would be a class action in the US system. This is a different type of situation to a unusually sympathetic test case chosen by the plaintiffs side.

As a separate issue, in all common-law systems, cases decided below a certain level do not create precedent. So a test case can also be one chosen by either or both of the parties post-judgement (to appeal and set a precedent, where the value of the individual case is too low to justify the cost of an appeal if it wasn't a test case), or by the Court (to hear at a higher level than the value of the individual case justifies because of the precedent-setting aspect).

Given most civil cases settle, precedents are in some sense the core output of the trial process.

Thanks for the detailed explanation! My knowledge isn’t nearly as in-depth.

I am not 100% sure what you mean by "real effects of that law in relation to the broad mass of humanity," but if I understand you correctly, that does not seem to me to be much of an issue. If you look at any Supreme Court decision, you will find that appellate judges spend most of their time thinking about how the precedents they create will affect everyone else other than the specific parties involved.

In this conception, deliberately forming test cases is a sin because you are biasing your training data at the lower levels and distorting the results at the higher levels.

This is a very good description of the problem with these kinds of cases because the case itself is a rhetorical weapon and becomes the exemplar of the dispute in the elite public mind (elite in the sense that no one else really is able to follow court proceedings).