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Dale M
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The Duck Test

“If it looks like a duck, walks like a duck and quacks like a duck, it most probably is a duck.”

Courts do not elevate form over substance.

The duck test was explicitly called out in the dissenting opinion of Sotomayor, J in Garland v. Cargill 602 US (2024). In that opinion, her honor said that a bump stock was a duck, I mean, a machine gun; of course, the majority looked at the same duck, I mean, bump stock, and decided it didn't really look like machine gun ... or a duck.

This illustrates the limits of the duck test: Different people can look at the same bird and reasonably come to different decisions about whether it's a duck or not.

The Duck Test

“If it looks like a duck, walks like a duck and quacks like a duck, it most probably is a duck.”

Courts do not elevate form over substance.

The Duck Test

“If it looks like a duck, walks like a duck and quacks like a duck, it most probably is a duck.”

Courts do not elevate form over substance.

The duck test was explicitly called out in the dissenting opinion of Sotomayor, J in Garland v. Cargill 602 US (2024). In that opinion, her honor said that a bump stock was a duck, I mean, a machine gun; of course, the majority looked at the same duck, I mean, bump stock, and decided it didn't really look like machine gun ... or a duck.

This illustrates the limits of the duck test: Different people can look at the same bird and reasonably come to different decisions about whether it's a duck or not.

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Source Link
Dale M
  • 226.6k
  • 17
  • 262
  • 519

The Duck Test

“If it looks like a duck, walks like a duck and quacks like a duck, it most probably is a duck.”

Courts do not elevate form over substance.