Posts Tagged ‘law school’


Law Geekiness: The Rational Basis Standard of Review

December 18th, 2007 by Oskar Kennedy

  When applying the Rational Basis standard of review, the Court seems to be giving the government ever-wider freedom to act as it sees fit, without any meaningful check from the judiciary. In 1949, Justice Jackson’s concurrence in Railway Express v. New York lauds the “salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation.”

  In 1973, the Court said that a suspect classification would be “examined to determine whether it rationally furthers some legitimate, articulated state purpose.” San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).

  By 1980, United States Railroad Retirement Bd. v. Fritz saw Justice Rehnquist proclaiming that “where, as here, there are plausible reasons for Congress’ actions, our inquiry is at an end.” The Court no longer required that the actual reason for a law be rational. Rather, any sufficiently convincing post hoc justification that could be conceived of would suffice.

  In 1993, the Court in FCC v. Beach gave up all pretense of oversight, and instead placed the burden on litigants challenging a discriminatory law “to negate every conceivable basis which might support it.” One pictures competing attorneys filling up notebooks with possible justifications and counterarguments. If the government attorney manages to think of just one more than the challenger, it’s a check in the win column.

  The Court has done a neat job of ruling itself into a corner. When the Court found that the challenged Amendment in Romer v. Evans was discriminatory and motivated purely by hatred for homosexuals, the Court had to bludgeon the Rational Basis standard into a nearly unrecognizable state to enable it to strike the Amendment down. Critics who say that the Court was actually engaging in a stricter review are right. Unfortunately, the Court had very little choice. The Rational Basis standard has so little practical power to invalidate a law that the Court had to choose between dressing Intermediate Scrutiny in a hand-me-down Rational Basis t-shirt, or declaring sexual orientation a quasi-suspect classification and granting it the automatic protection of that stricter standard.

  Comparisons to the sexist reasoning in Muller v. Oregon immediately spring to mind. Again, the Court granted a much-needed protection, while (albeit a tad more subtly) endorsing intolerance toward the class it was protecting by upholding a particular discriminatory perception, namely that sexual orientation is a voluntary, rather than immutable, characteristic.

  All of that was the long way around to the following question; can the Rational Basis standard of review possibly get any more deferential? Is the chance to argue about the justification for the challenged legislation a certain thing, or will we see a day where the Court will simply deny certiorari if the government’s list of justifications is longer than the challenger’s list of arguments against them?

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I Draw Pictures

April 10th, 2008 by Oskar Kennedy

  I recently had to do an in-class presentation on a federal public service tuition forgiveness program. In order to spice up a Sahara-dry topic, I tossed some illustrations in to break up the monotony of my Powerpoint slides. I’m gonna toot my own horn a bit, and say they turned out pretty well.

  The set of 10 is available as a slideshow on Flickr. If you want to humor me, take a look and let me know what you think.

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Law School Terminology: A Primer For The Uninitiated

August 21st, 2008 by Oskar Kennedy

Everyone who has ever been to law school has complained about the volume of the work involved. Yeah, it’s a First World inconvenience. I could be mining sulfur by hand in the mouth of an active volcano. But I’m not. Those guys should get their own blog.

One thing that’s particularly tough about law school is trying to describe your work to someone who’s never been. A lot of the terminology is misleading, and the complainer winds up having to explain to the complainee why it’s a problem.

Take the reading as an example. As a very, very loose average, you’re reading about 50 pages from a casebook for each session of each class. 50 pages of reading doesn’t sound like a big deal. Hell, I can read 50 pages of a really engrossing novel in about half an hour.

(more…)

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I Was Better Off Not Knowing

August 28th, 2008 by Oskar Kennedy

As I spiral rapidly into my mid-Thirties, the ol’ metabolism isn’t as efficient as it used to be. My abdomen is starting to fold over the top of my pants and the underside of jaw, which used to rise up, now sloughs downward before smooshing into my neck somewhere just north of my Adam’s Apple.

Since I carry most of my weight in my midsection – seriously, I look like a potato with toothpicks stuck in it – I figured that I was probably packing my internal organs snugly in fat. So I started going to the gym, in an effort to stave off coronary arrest for a few years.

It’s going okay. I’ve lost a few pounds, and I’m just slightly more energetic. People keep asking me if I enjoy it, and it’s a struggle not to kick them in their collective groin. Thankfully, my mood has also improved a tad, so it’s not as hard as it could be.

I’m making it a practice to go to the gym on my way home from class, so I’m carrying my backpack full of books, my computer, various school supplies, plus a bag containing my gym accoutrements. It’s heavy, but not Himalayan-sherpa heavy, so I groan when I strap it all on, but I don’t think about it too much.

Until now.

Yesterday, after I changed into my going home clothes and hung all of the stuff from my various bits, my gaze happened to fall on the scale. I don’t weigh myself every time I go. I just do it once in awhile, to remind myself that I’ve made some meager progress. What the hell, I thought. I’m here, my load of crap is here, why not see how much it weighs?

30 pounds. I’m lugging 30 pounds of utter bollocks to and from campus with me every day. And now, every time I think about picking up my stuff and walking to the bus, I’m consumed with the thought of how I’m carrying 30 pounds of bollocks to and from campus every day. Just thinking about it is exhausting. Curiousity didn’t kill this cat, but it did make him want to take a nap.

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Coincidence (Unpleasant)

September 11th, 2008 by Oskar Kennedy

In my Advanced Legal Research class, we’re looking at resources for researching legislative history. This is the stuff that accumulates around a bill as it’s working its way through Congress: committee reports, floor debates, amendments, etc.

Right now we’re looking at a print resource called the U.S. Code Congressional & Administrative News, published by Thomson/West. It collects edited versions of that material for bills that seem to be of particular public interest. The professor passed out, at random, volumes of the October 2007 collection.

The first law in my volume is the Implementing Recommendations Of The 9/11 Commission Act of 2007. Meanwhile, the Bush administration is claiming denying, contrary to the Commission’s report, that Osama Bin Laden was responsible for the attack in the first place.

Does anybody else feel like all those people basically died for nothing?

EDIT: Sometimes my typing fingers get stupid when I’m choking with rage. See strikethrough above.

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