Pedagogy & the Standards of Review

Scott Gerber s-gerber at onu.edu
Tue Oct 25 07:09:38 PDT 2005


Justice Thurgood Marshall had a lot to say on this issue.  I always add his
insights to the mix.

Scott Gerber
Law College
Ohio Northern University

At 08:46 AM 10/25/2005 -0500, Samuel Bagenstos wrote:
>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
>
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>
**********
Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/



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