Pedagogy & the Standards of Review

[Eric Freedman]

-For what it's worth, I take an approach much like Marty's.
I tell them that in SCOTUS the actual degree of scrutiny will depend on a host of factors (which we try to develop together over several weeks) and that one should start from there rather than trying to guess how the Court will eventually choose to label the one it applies.
However, for packaging purposes to all other courts I suggest that whatever degree of scrutiny one comes to at the end of the process should be given one of the current designations.
Best. -E.








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      Eric M. Freedman
Maurice A. Deane Distinguished Professor
 of Constitutional Law
      Hofstra Law School
      Hempstead, NY  11550
      LAWEMF at Hofstra.edu
      Tel. 516-463-5167
      Fax 516-463-5129
  Home Office:
   Tel. 212-665-2713
    Fax 212-665-2714
            ***********

>>> "Marty Lederman" <marty.lederman at comcast.net> 10/25/05 10:26 AM >>>
Sam's second parenthetical deserves to be much more than a parenthetical point:  It's my experience that he's right that, for better or (perhaps) for worse, lower-court judges take the tiers nonsense (and other similar doctrinal "tests") very seriously indeed, and nine times out of ten the choice of "standard of review" determines the outcome of a case in the lower court.  Which is why Sam's briefs to lower courts -- and mine, and those of any decent litigator -- look very different from our briefs to the SCOTUS, which are much less "tier-dependent."