Friday, December 22, 2006

"Medium Rare Scrutiny"

I need a break from grading Con Law exams, so I thought I would share with my fellow Property Professors a gem of an article describing the Supreme Court's "tiers of scrutiny" for reviewing laws under the Constitution. Many of you may try to introduce the class to strict scrutiny, intermediate scrutiny, and the rational basis test when teaching some aspect of Constitutional Law to 1L property students. And if you are looking for an article that describes this area of the law--including the fact that the three standards of review are, in reality, many more than three--you need look no further than Prof. Michael Stokes Paulsen's six-page masterpiece, Medium Rare Scrutiny, 15 Const. Comm. 397 (1998).

My students love this article, because it is both informative and hilarious. Paulsen compares the Court's tiers of scrutiny to the way he barbecues steak in his backyard in Minneapolis on his Weber grill. Thus, he speaks of Rare Scrutiny, Medium Rare Scrutiny, Medium Scrutiny, Medium Well Scrutiny, and Well Done Scrutiny. Here is a short excerpt from the article, one describing "Romer-type rational basis with a bite" scrutiny, that should give you a feel for Paulsen's magic:

But Romer-type scrutiny is probably better labeled "rare to medium rare," or--if we're really being honest--"medium-well-to-well-done-but-call-it-rare-to-medium-rare-because-that's-hipper-and-I-don't-want-to-admit-what-I'm-really-doing" scrutiny. As everyone knows, rational basis with bite is really just another way of saying "singe the statute." As Gerald Gunther might (or might not) put it, such scrutiny is "rare" in theory and fatal in fact--dead, dead meat. It's amazing how many times "rare to medium rare" ends up being burned, when the Supreme Court is barbecuing the Constitution.

This is one of my all time favorite articles. If you get bored grading your exams, take a ten minute break and read Medium Rare Scrutiny. It will clear your palate for the next batch of blue books.

Rick Duncan

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