Also known as:two part approach · two-part test · two-prong test · two prong approach
Written by attorneys · grounded in primary & secondary sources — see below
A method of legal analysis that resolves a question by sequentially addressing two distinct inquiries or prongs.
Sources & Authorities
How it applies
Common Examples
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Undercapitalized Subsidiary Debt Collection
Rivera Solar completes installation work for SunFarm 12 LLC but receives no payment after SolarGrid Holdings transfers the power purchase contract to another affiliate. Rivera sues SolarGrid to collect the judgment. The court applies the two-part approach by first examining whether SunFarm 12 functioned as SolarGrid's alter ego through nominal capitalization and commingled accounts, then determining whether respecting the separate entity would promote injustice by leaving the creditor without recourse.
Hidden Recorder in Shared Mailroom
Campus police place an audio recorder in a shared faculty mailroom without a warrant. Professor Lin steps into a corner and speaks quietly with a student about exam answers. Lin moves to suppress the recording. The court applies the two-part approach by first asking whether Lin exhibited a subjective expectation of privacy through low tones and seclusion, then evaluating whether society would recognize that expectation as reasonable in the semi-public setting.
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Cases
Study Supplements
Trademark Registration Free Speech Challenge
Tam seeks to register a trademark containing a racial slur for his band. The PTO denies registration on disparagement grounds. Tam challenges the denial as viewpoint discrimination. The court applies the two-part approach by first determining whether the denial constitutes government speech or regulation of private speech, then assessing whether the regulation survives the applicable level of scrutiny under the First Amendment.
Matal v. Tam582 U.S. 218 (2017)
Private Party State Action Claim
A creditor obtains a writ of attachment through a state procedure and seizes a debtor's property without prior notice. The debtor sues the creditor under section 1983 claiming a due process violation. The court applies the two-part approach by first examining whether the creditor's conduct was caused by a state-created right or privilege, then determining whether the creditor can fairly be described as a state actor.
Lugar v. Edmondson Oil Co.457 U.S. 922, 937 (1982)
Student Speech Banner Discipline
A high school student unfurls a banner reading 'Bong Hits 4 Jesus' across the street from school during a supervised event. The principal confiscates the banner and suspends the student. The student sues claiming a First Amendment violation. The court applies the two-part approach by first asking whether the speech occurred in a school-sponsored setting, then evaluating whether the school reasonably viewed the banner as promoting illegal drug use.
Morse v. Frederick551 U.S. 393 (2007)
Taxpayer Standing for Executive Expenditures
A foundation challenges executive branch conferences promoting faith-based initiatives as an establishment clause violation. The plaintiffs sue as federal taxpayers. The court applies the two-part approach by first determining whether the challenge falls within the narrow Flast exception for congressional taxing and spending, then assessing whether the expenditures were authorized by specific legislative action rather than general executive discretion.
Hein v. Freedom From Religion Foundation, Inc.551 U.S. 587 (2007)
Common questions
Frequently Asked
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What are the two parts of the approach used to pierce the corporate veil?+
The first part examines whether the corporation was the alter ego or mere instrumentality of the shareholder through factors such as undercapitalization and commingling of funds. The second part asks whether respecting the corporate form would sanction fraud or promote injustice.
How does the two-part approach determine whether a recording constitutes a Fourth Amendment search?+
The first part requires the individual to exhibit an actual subjective expectation of privacy. The second part asks whether that expectation is one society is prepared to recognize as reasonable.
What two-part showing must a party make to overcome work product protection?+
The requesting party must demonstrate substantial need for the materials to prepare its case. It must also show that it cannot obtain the substantial equivalent of the materials without undue hardship.
What two elements must a defendant prove to establish ineffective assistance of counsel?+
The defendant must show that counsel's performance fell below an objective standard of reasonable competence. The defendant must also show prejudice, meaning a reasonable probability that the outcome would have differed but for the deficient performance.
468 U.S. 897 (1984)Criminal Procedure
…the Court of Appeals concluded that the information provided by the informant was inadequate under both prongs of the two-part test established in Aguilar v. Texas , 378 U. S. 108 (1964), and Spinelli v. United States , 393 U. S. 410 (1969).[^maj-5] The officers' independent investigation neither cured the staleness…