A tip you can give students:
Consider developing analytical templates for issues you know will appear on your exams. You can glean them from your briefs and class notes, from explicit tests and definitions applied by the courts, or from cases that lay out a series of steps in the analyses of particular issues.
You can create your own template by gathering the critical concepts governing the analysis of an issue and arranging the concepts into a set of steps or questions the courts generally use to analyze that issue. You could then use the steps or questions to guide your own analysis on an exam.
For example, you might boil down the critical concepts concerning animus under the Equal Protection Clause and create a template to guide your discussion of whether the facts of a problem suggest animus on the part of the government. You could then make the template easy to remember by arranging the concepts into “BIASES”:
Animus/Invidious Choice (Purpose to disadvantage a group)
- B – Bare desire to harm unpopular group = never legitimate gov’t interest
- I – Invidious choice = violation of E.P.
- A – Arbitrary assignment of burdens among classes
- S – Singling out unpopular group for special disability = possible bias
- E – Enabling private biases through gov’t action = violation of E.P.
- S – Smoking out animus — Scrutiny depends on classification
This template reflects a more expanded version, which is itself a boiled down version of a detailed outline:
Animus/Invidious Choice (Purpose to disadvantage a group)
- Bare desire to harm unpopular group = never legit
- Invidious choice = violation of E.P.
implies disrespect
driven by animus
- Arbitrary assignment of burdens among classes
no logical purpose = no rational basis = arbitrary
Standard: achieved purpose in patently arbitrary or irrational way?
Rationale so attenuated from goal = arbitrary or irrational.
- Singling out unpopular group for special disability = possible bias
Disadvantage politically unpopular group
Targeting group w/ unpopular trait or affliction
Broad disability on single class
E.g., singling out class to restrict ability to seek protection from discrimination especially egregious violation of E.P., e.g. (Colorado gays)
E.g., no food stamps for unrelated households (bias against hippies)
- Enabling private biases through gov’t action = violation of E.P.
Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
- Scrutiny depends on classification (tests to smoke out animus)
Non-suspect = Rational Basis Test
Quasi-suspect = Intermediate Scrutiny
Suspect = Strict Scrutiny
Dan Weddle
