Academic Legal Writing - Eugene Volokh [23]
Your argument, at least at its initial level of generality, is thus probably wrong or at least incomplete. But focusing solely on your one core case keeps you from seeing the error.
One way to fight these errors is a device borrowed from computer programming: the test suite. A test suite is a set of cases that programmers enter into their programs to see whether the results look right. A test suite for a calculator program, for instance, might contain the following test cases, among many others:
1. Check that 2+2 yields 4.
2. Check that 3-1 yields 2.
3. Check that 1-3 yields -2 (because the program might work differently with positive numbers than with negative ones).
4. Check that 1/0 yields an error message.
If all the test cases yield the correct result, then the programmer can have some confidence that the program works. If one test yields the wrong result, then the programmer sees the need to fix the program—not throw it out, but improve it. Such test suites are a fundamental part of sound software design. Before going into law, for instance, I wrote a computer program that had 50,000 lines of test suites for its 140,000 lines of code.
You can use a similar approach for testing legal proposals. Before you commit yourself to a particular proposal, you should design a test suite containing various cases to which your proposal might apply.*
Assume, for instance, that you are upset by peyote bans that interfere with some American Indian religions. The government has no business, you want to argue, imposing such paternalistic laws on religious observers. You should design a set of test cases involving requests for religious exemptions from many different kinds of paternalistic laws, for instance:
1. requests for religious exemptions from assisted suicide bans, sought by doctors who want to help dying patients die, or by the patients who want a doctor's help;
2. requests for religious exemptions from assisted suicide bans, sought by physically healthy cult members who want help committing suicide;
3. requests for religious exemptions from bans on the drinking of strychnine (an example of extremely dangerous behavior);
4. requests for religious exemptions from bans on the handling of poisonous snakes (an example of less dangerous behavior);
5. requests for religious exemptions from bans on riding motorcycles without a helmet (an example of less dangerous behavior, but one that—unlike in examples 3 and 4—many nonreligious people want to engage in).6
Then, once you design a proposed rule, you should test it by applying it to all these cases and seeing what results the proposal reaches.
B. What You Might Find by Testing Your Proposal
What information can this testing provide?
1. Identifying errors
You might find that the proposal reaches results that even you yourself think are wrong. For instance, suppose that your initial proposal is the one that we just discussed: that religious objectors should always get exemptions from paternalistic laws. Thinking about the assisted-suicide test case (case 2 in the list given above) might lead you to doubt that proposal, and conclude that people should not be allowed to help physically healthy people commit suicide. The proposed rule, then, would be unsound.
What can you do about this?
a. You might think that the proposal yielded the wrong result because it didn't take into account countervailing concerns that may be present in some cases—for instance, the special need to prevent a voluntarily assumed near-certainty of death or extremely grave injury, rather than just a remote risk of harm. If this is so, you could modify the proposed test, for instance by limiting its scope (for example, by including exception for harms that are likely to be immediate, grave, and irreversible).
b. Another possibility is that the insight that led you to suggest the proposal