01 Legal classifications

01 Legal classifications - Outline Section #1- Law &...

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Outline Section #1- Law & Politics 106 --5 Feb 2008 Joseph Dwyer © [This is not a Textbook that has been edited, revised, fact-checked, etc. Caveat Emptor !] I) Beyond legal reasoning A) Judicial Activism and Restraint 1) “willingness to make significant changes in public policies established by elected branches” (i) What does this mean? 2) Activism (i) Court must enforce limited powers (ii) Protect minorities (even 1 person) (iii) Courts deliberate reasonably; shielded from ill-humors (iv)Court must protect fundamental values, maybe ignored elsewhere: liberty 3) Restraint (i) Democratic branches should govern (ii) Judges’ preferences shouldn’t replace majority’s (iii) Courts not well equipped to formulate policy (iv)Activism subjects the courts to political attacks II) Interest Groups A) The ‘democratic’ element affecting all three branches B) Model for judicial branch strategy is NAACP Legal Defense Fund 1) NAACP LDF (est’d 1940) part of NAACP (est’d 1909), became separate 1957, and has been involved in more cases before the Supreme Court than any other organization besides DOJ 1 2) Interest groups sponsored 2/3 of cases receiving a full opinion from 1987 Supreme Court (filed amicus curiae briefs in 4/5 of all cases) C) Plessy v. Ferguson (1896) used a doctrine of separate but equal; NAACP attacked this doctrine of segregation and won Brown v. Board (1954) III) 14 th Am equal protection (1868) A) “[No State shall] deny to any person within its jurisdiction the equal protection of the laws” 1) Rights apply to even one individual! (cf. 105) 2) Methodological individualism- ‘state doesn’t see discrimination if there wasn’t an individual holding a prejudicial belief and intending to enforce that belief’ (Young 1998: 92-3) B) ‘traditional’ rational basis scrutiny 1) But test traditionally applied in social and economic legislation is ‘rational relation to valid state objective’ (543) 2) Rational relationship to legitimate state purposes (156) C) Strict scrutiny used because race involved (Hopwood, 185) 1) Disparate treatment based on color of skin unconstitutional unless it “serves a
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01 Legal classifications - Outline Section #1- Law &...

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