Is Craig v. Boren absent from Justice Ginsbur's Opinion in VMI?
emaltz at camden.rutgers.edu
Mon Mar 28 08:29:09 PST 2005
In my view, tests like intermediate scrutiny and balancing tests are
nothing more than devices that allow the Justice Powells of the world
to vindicate their political value judgments while comforting themselves
with the illusion that they are applying distinctively legal principles.
Pedagogically, I tell my class in Constitutional Law that we are going to
operate under a similar illusion in order that they may learn the structure
of the arguments that, in rare cases, they may have to use as lawyers.
At 11:04 AM 3/28/2005 -0500, you wrote:
> If Craig stands for a new standard of review (intermediate
> scrutiny), and Justice Ginsburg is following the correct standard of
> review in gender case, then it's seem necessary to cite Craig. Hogan
> used the new standard of review articulated in Craig in addition to the
> "exceedingly persuasive" language. VMI doesn't. If we believe that VMI
> (and other gender cases) do not in "any sense turn on the language of
> the standard of review," what role do the various standards of review
> play in adjudication and pedagogy?
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
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