Different Standards for Strict Scrutiny

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adil91

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Different Standards for Strict Scrutiny

Postby adil91 » Mon Jul 16, 2018 6:55 pm

Themis has two different standards for strict scrutiny depending on what constitutional amendment is implicated

For the equal protection clause it is "narrowly tailored to meet a compelling state interest"

For another amendment (I can't quite recall which one) the standard is least restrictive means to achieve compelling government interest

Are these rules just different ways of stating the same standard or are they different standards?

When do we use each?

Findedeux

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Re: Different Standards for Strict Scrutiny

Postby Findedeux » Mon Jul 16, 2018 8:25 pm

I don't see where they list two standards.

Narrowly tailored is part of intermediate scrutiny.

The law must be the least restrictive means to achieve a compelling governmental interest.

Dumplingdude42

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Re: Different Standards for Strict Scrutiny

Postby Dumplingdude42 » Mon Jul 16, 2018 9:26 pm

adil91 wrote:Themis has two different standards for strict scrutiny depending on what constitutional amendment is implicated

For the equal protection clause it is "narrowly tailored to meet a compelling state interest"

For another amendment (I can't quite recall which one) the standard is least restrictive means to achieve compelling government interest

Are these rules just different ways of stating the same standard or are they different standards?

When do we use each?


You're right.

For Equal Protection & Substantive Due Process questions, the table is:

-Strict Scrutiny: Law must be the least restrictive means to achieve a compelling government interest (otherwise stated as "narrowly tailored to achieve a compelling government interest, by the least restrictive means") --> applies when there is a suspect class or fundamental right
-Intermediate Scrutiny: Law must be substantially related to an important government interest --> applies in cases of gender or legitimacy
-Rational Basis: Law must be rationally related to a legitimate government interest --> everything else

For First Amendment questions, the same terminology is mixed in to slightly different tests:

-Strict Scrutiny: Regulation of speech will be upheld only if it is necessary to achieve a compelling government interest and is narrowly tailored to meet that interest --> applies to content-based restrictions

-Time, Place, Manner Restrictions: Content-neutral/view-point neutral restrictions in a public forum or limited public forum are permissible if they are narrowly tailored to serve a significant government interest with ample alternate channels of communication left open (and here significant government interest is really interpreted as any rational basis. Example: A city imposes a regulation on the size and brightness of any sign along the highway to preserve safety. To preserve safety is a rational basis under which the government has imposed a content-neutral restriction, and it will be upheld.

estefanchanning

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Re: Different Standards for Strict Scrutiny

Postby estefanchanning » Mon Jul 16, 2018 9:36 pm

Dumplingdude42 wrote:
adil91 wrote:Themis has two different standards for strict scrutiny depending on what constitutional amendment is implicated

For the equal protection clause it is "narrowly tailored to meet a compelling state interest"

For another amendment (I can't quite recall which one) the standard is least restrictive means to achieve compelling government interest

Are these rules just different ways of stating the same standard or are they different standards?

When do we use each?


You're right.

For Equal Protection & Substantive Due Process questions, the table is:

-Strict Scrutiny: Law must be the least restrictive means to achieve a compelling government interest (otherwise stated as "narrowly tailored to achieve a compelling government interest, by the least restrictive means") --> applies when there is a suspect class or fundamental right
-Intermediate Scrutiny: Law must be substantially related to an important government interest --> applies in cases of gender or legitimacy
-Rational Basis: Law must be rationally related to a legitimate government interest --> everything else

For First Amendment questions, the same terminology is mixed in to slightly different tests:

-Strict Scrutiny: Regulation of speech will be upheld only if it is necessary to achieve a compelling government interest and is narrowly tailored to meet that interest --> applies to content-based restrictions

-Time, Place, Manner Restrictions: Content-neutral/view-point neutral restrictions in a public forum or limited public forum are permissible if they are narrowly tailored to serve a significant government interest with ample alternate channels of communication left open (and here significant government interest is really interpreted as any rational basis. Example: A city imposes a regulation on the size and brightness of any sign along the highway to preserve safety. To preserve safety is a rational basis under which the government has imposed a content-neutral restriction, and it will be upheld.


Who provided you for these tests? Because they're different from what I have, and you omitted other variations that apply in different situations (gender, abortion, commercial speech, interstate commerce etc)

They are all different. Though some are similar, I think the phrasing here is imperative for bar graders.

Findedeux

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Re: Different Standards for Strict Scrutiny

Postby Findedeux » Mon Jul 16, 2018 9:42 pm

I can't say I noticed that before.

Thankfully, it's never mattered on an mbe question that I've seen so far.

Dumplingdude42

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Re: Different Standards for Strict Scrutiny

Postby Dumplingdude42 » Mon Jul 16, 2018 9:45 pm

I pulled it from the Themis Con Law outlines. Here's is what is listed under the substantive due process/equal protection section:
"
Strict scrutiny

1) Test

The law must be the least restrictive means to achieve a compelling governmental interest.
...
b. Intermediate scrutiny

1) Test

To be constitutional, the law must be substantially related to an important governmental interest.
...
Rational basis

1) Test

A law passes the rational basis standard of review if it is rationally related to a legitimate governmental interest. This is a test of minimal scrutiny. It is not required that there is actually a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link."



Here is the 1st Amendment stuff:
"In either type of public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions:

i) Are content-neutral as to both subject matter and viewpoint (i.e., it is not necessary to hear what is said in order to apply the regulation);

ii) Are narrowly tailored to serve a significant governmental interest; and

iii) Leave open ample alternative channels for communication of the information.
...

Any governmental regulation of speech that is content-based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., the strict scrutiny test). Reed v. Town of Gilbert, 576 U.S. ___, 135 S. Ct. 2218 (2015).

estefanchanning

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Re: Different Standards for Strict Scrutiny

Postby estefanchanning » Mon Jul 16, 2018 9:54 pm

I don't mean to undermine your notes, but I feel that some of the tests they gave you should be worded more concisely and accurately. While it won't matter much on the MBE, it will matter on the essay. This is from my conlaw outline from law school (which conforms to barbri). I omitted case citations for brevity.

SS: law must be necessary to achieve compelling gov interest
IS: law must be substantially related to important gov purpose
IS (gender): law must have exceedingly persuasive justification
IS (abortion, pre-viability): law is unconstitutional if its purpose or effect is to place substantial obstacle in path of W seeking abortion
IS (abortion, post-viability): law may may prohibit abortion unless woman's health is threatened
RBT: law must be rationally related to legitimate gov interest.

first amendment:
SS: same as above
IS: law must be narrowly tailored to serve important gov interest
IS (commercial: law must be narrowly tailored to directly advance substantial gov interest

There are other versions of these tests for interstate commerce, other types of free speech etc that i haven't bothered to post.

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CLSGumbo

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Re: Different Standards for Strict Scrutiny

Postby CLSGumbo » Mon Jul 16, 2018 10:00 pm

estefanchanning wrote:I don't mean to undermine your notes, but I feel that some of the tests they gave you should be worded more concisely and accurately. While it won't matter much on the MBE, it will matter on the essay. This is from my conlaw outline from law school (which conforms to barbri). I omitted case citations for brevity.

SS: law must be necessary to achieve compelling gov interest
IS: law must be substantially related to important gov purpose
IS (gender): law must have exceedingly persuasive justification
IS (abortion, pre-viability): law is unconstitutional if its purpose or effect is to place substantial obstacle in path of W seeking abortion
IS (abortion, post-viability): law may may prohibit abortion unless woman's health is threatened
RBT: law must be rationally related to legitimate gov interest.

first amendment:
SS: same as above
IS: law must be narrowly tailored to serve important gov interest
IS (commercial: law must be narrowly tailored to directly advance substantial gov interest

There are other versions of these tests for interstate commerce, other types of free speech etc that i haven't bothered to post.


can you post dormant CC? plz!



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