January 15, 2007

We Don't Mean to be Coy, but . . .

Re: Denver. Snow and ice from repetitive storms persists, becomes denser, more black, more treacherous. Residential side streets are graced with wavy grooves down the middle, one for each tire. Passing traffic the other way means reciting a prayer and then a jolting slide back into the groove. It sounds groovier than it is.

Re: Bar Exam. 42 days remain. Recently my strong subjects have been Criminal Law and Constitutional Law. Ironic. Probably just a few lucky guesses. My normally strong performance in Contract Law has dwindled to a pathetic scramble to guess the least incorrect-sounding options. Not good.

What kills me about Con Law is the almost arbitrary choice of squishy English words to describe levels of scrutiny that control extremely important democratic concepts such as 'equal protection of the laws' and 'Congress shall make no law respecting the establishment of religion.'

Words like "necessary," "compelling," "important," and "substantial" are not interchangeable in the law. No. Used by judges in each case to describe something "necessary," etc, but then adopted by "the law" as a stultified, ossified, brittle and crunchy rule of law that thou shalt quote correctly or be killed. And "legitimate?" Who decides what's a legitimate government interest? A silly word choice to describe something driven almost totally by previous judicial decisions. A better standard would have been: "not rationally related to a government interest that the Judicial branch has already anointed as legitimate."

What exactly is a "substantial government interest?" I'm pretty sure I know what it should be, but don't we all? Too squishy for comfort.

What we memorize and regurgitate for the Bar Exam is that words like "necessary" and "compelling" are about things like race, alienage, and national origin discrimination, while words like "substantially related" and "important" are about gender discrimination and whether or not the children of illegal aliens should be allowed to attend public schools. So there you go. That's what's important: gender and whether children of illegal aliens can attend public schools. Nothing else is particularly important. Age, sexual orientation, social class . . . not important. No.

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