Pedagogy & the Standards of Review

Tue Oct 25 09:28:15 PDT 2005

    When I teach free speech law and Religion Clauses law, I spend a lot
of time talking about intermediate scrutiny and strict scrutiny and
their subprongs; and my textbook has a good deal of coverage
specifically focused on these questions.  

    I tell students that strict scrutiny in free speech cases has
generally been fatal in fact, and that the Court has sometimes struck
down even laws that seem factually narrowly tailored to an interest that
the Court has acknowledged to be compelling.  But I also guide students
pretty carefully through all the doctrine that the Court has given us
about strict scrutiny (e.g., the inquiries into whether the law
substantially advances the interest, whether it's overinclusive with
regard to the interest, whether there are less restrictive but pretty
much equally effective alternatives to serving the interest, and whether
it's underinclusive with regard to the interest).  Sometimes even the
Court seems to take those matters seriously; as Marty pointed out, lower
courts often do; and certainly lawyers arguing in lower courts have to
argue as if these items mattered.

    Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, October 25, 2005 7:27 AM
To: Samuel Bagenstos; RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu;
rtepker at ou.edu
Subject: Re: Pedagogy & the Standards of Review

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."

Although perhaps this isn't really an important lesson to convey to
first-year law students, it is a significant phenomenon.  (Well, perhaps
it is important to convey it to them -- after all, they will spend most
of their legal careers dealing with lower courts, not the SCOTUS.)
Moreover, it's very likely the case that the SCOTUS creates the fiction
of tiers and other such animals precisely in order to bring some
structure and consistency to lower-court decisionmaking.  That is to
say, the tiers and other constructs are not meant to govern the Court
itself in its future cases -- they are, instead, intended to send
signals to the rest of the judiciary about how to go about deciding the
numerous cases that will appear on their dockets in the interregnum
between the Court's own pronouncements.

Even if I'm correct about this, I'm not sure how it should affect how we
present "tiers" and the like to our students.  I tend not to focus too
much on such faux-doctrines.  But perhaps I ought to do so more, seeing
as how those faux-doctrines are the currency of the legal world in which
most of our students will do the majority of their work.

----- Original Message ----- 
From: "Samuel Bagenstos" < <mailto:srbagenstos at wulaw.wustl.edu>
srbagenstos at wulaw.wustl.edu>
To: < <mailto:RJLipkin at aol.com> RJLipkin at aol.com>; <
<mailto:CONLAWPROF at lists.ucla.edu> CONLAWPROF at lists.ucla.edu>; <
<mailto:rtepker at ou.edu> rtepker at ou.edu>
Sent: Tuesday, October 25, 2005 9:46 AM
Subject: RE: Pedagogy & the Standards of Review

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>
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog:   <http://disabilitylaw.blogspot.com/>
http://disabilitylaw.blogspot.com/

>>> "Tepker, Rick" < <mailto:rtepker at ou.edu> 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:  <mailto:conlawprof-bounces at lists.ucla.edu>
conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
<mailto:RJLipkin at aol.com> RJLipkin at aol.com 
Sent: Tuesday, October 25, 2005 7:14 AM
To:  <mailto:CONLAWPROF at lists.ucla.edu> 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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