Pedagogy & the Standards of Review

[Mark Kende]

As others have said, I go through the different levels of review and their 
various permutations (rationality, rationality with bite, intermediate 
scrutiny, strict scrutiny, O'Connor's version of "strict" scrutiny in 
Grutter, etc.) as well as Marshall's sliding scale during our progress 
through the course.  Then, at some point I introduce the students to the 
proportionality analysis done by the South African Constitutional Court, 
the Canadian Supreme Court, and various other courts in which certain 
specific factors are taken into account explicitly in the analysis of 
whether the government's action is constitutional.  These factors to me 
resemble the kinds of nuances that cause the U.S. Supreme Court to vary the 
scrutiny levels in reality.  The difference is that the proportionality 
analysis is open about what's occurring.  We then discuss the advantages 
and disadvantages of having a less categorical approach, versus having a 
categorical approach that is malleable.  I think what these foreign courts 
are doing is very illuminating and that the U.S. Supreme Court approach is 
in the minority (which is not to say it's better or worse).   Mark



At 09:59 AM 10/25/2005, Eric Freedman wrote:
>-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:
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> >>> "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."
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Professor Mark Kende
Director, Constitutional Law Center
James Madison Chair, Drake Law School
2507 University Ave.
Des Moines, IA 50311
515-271-3354, 515-271-1858 (fax)
mark.kende at drake.edu