Pedagogy & the Standards of Review

[Samuel Bagenstos]

It seems to me that there are two basic historical contingencies you have to explain if you're going to be intellectually honest about "the standards of review":  first, the understanding that there are two tiers of review (which then sets up discussion about why the two-tier model breaks down); and second, the framing of the standards of constitutional review in terms of fit (which then sets up discussion about the many cases where fit isn't the problem -- which is partly why you get what Rick calls "less-than-candid departures from the tiers").

More generally, I don't think it's being particularly academic to tell the students that the "tiers" of scrutiny aren't all they're cracked up to be.  In my experience, it's academics (and lower-court judges, who rely on law clerks trained by academics) who are the ones who try to force all of constitutional law into a unified field theory of rational-basis/intermediate-scrutiny/strict-scrutiny.  The justices don't seem to be under any illusions that such a theory is possible or necessary.  Why, for example, should any problem with Lopez and Morrison be thought of as a departure (or an unexplained departure) from the "tiers"?  Why should a set of standards of review developed in individual rights cases apply to a congressional power case?  Why should the same set of standards of review govern all individual rights cases for that matter?

When I teach Lopez, Morrison, and the separation of powers cases, I don't teach the tiers in any deep way.  I certainly talk about the problems of institutional competence and democratic accountability that underlie the impulse to create tiers, but I don't find the rational-basis/intermediate-scrutiny/strict-scrutiny that helpful in understanding the cases (except insofar as understanding what "rational basis" has been meant to mean helps you understand the dissents in those cases).  You can spend a lot of time trying to situate City of Boerne on the RB/IS/SS axis, but I'm not sure why it helps anything to do so.


====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO  63130
314-935-9097
Personal Web Page:  http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:  http://disabilitylaw.blogspot.com/

>>> "Tepker, Rick" <rtepker at ou.edu> 10/25/2005 8:04 AM >>>
Step one:  drill two tiers into understanding

Step two:  identify development of middle tiers & reasons for creation

Step three:  identify less-than-candid departures from the tiers
(Cleburne, Lawrence, Romer, Lopez, Morrison &c)

I don't find this beyond their capabilities.  They are unsettled and
sometimes upset by it, but they seem to adapt well to the realities.
They are usually capable of identifying the right test in form, and to
the extent there are less-than-candid judicial departures, they see the
'proper' test is used in form, with a surprise ending in result.

 

 

Rick Tepker

Calvert Chair of Law and Liberty

  & Professor of Law

University of Oklahoma

Norman, Oklahoma

405.325.4832

__________________________

________________________________

From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com 
Sent: Tuesday, October 25, 2005 7:14 AM
To: CONLAWPROF at lists.ucla.edu 
Subject: Pedagogy & the Standards of Review

 

        I have a purely pedagogical question about the standards of
review.  Suppose one believes that the three tier conventional
understanding of the standards of review do not actually reflect the
analysis in caselaw, for example, that there are instances of
aggressive, non-deferential rational basis scrutiny and deferential
strict scrutiny.  (There are many other examples of caselaw not
conforming to the conventional understanding.) How does one teach the
conventional understanding when the Bar exam require students to apply
it and when caselaw rhetorically, at least, uses it although does not
always (or perhaps even rarely) follows it? Put differently, if
constitutional culture requires the conventional understanding, but
actual judicial decisions do not, which should constitutional law
professors teach? Conventional understanding? The actual decisions in
the caselaw? Both? Keep in mind that for some students either of the
first two answers prove difficult and the third answer is often beyond
their capabilities.

 

Bobby

 

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware