major developmentsonjudicialandcongressionalpower（主要developmentsonjudicialandcongressionalpower）（61页）.docVIP

Approaches to Con Law Review Reductio ad absurdium Want to prove P. Assume the opposite -- -P Generate from -P a contradiction (an absurdity A) A follows from -P Draw out the conclusion, that is, P must be true true Tautology – true by stipulation Slippery Slope evaluation Causal Claim Is this a causal connection which is valid Evaluate the effect Good thing or bad thing. Formalism v. Functionalism Use when dealing w/ scopes of power Functionalism: pragmatic Formalism: limits executive power, clause bound approach formalist hides behind sealed units of govt structure formalist hides behind form rather than face the exigencies that gave rise to the litigation. Often results in a broad holding Interpretivist and noninterpretivist args Use when dealing with fundamental rights Standards of Government Review Rational Basis Test: as long as reasonable people could come out with this view There must be a legitimate state objective: Practically any type of health, safety, or general welfare goal will be found to be legitimate There must be a rational relation to the state objective: the means chosen by the government and the state objective must be rationally related to the end. Only if government has acted in a completely arbitrary and irrational way will it not be found The individual who is attacking the government action bears the burden of proving irrationality Government action nearly always upheld When use the test? Policy questions Dormant commerce clause: State regulation has to pursue legitimate state end, and be rationally related to that end The state’s interest in enforcing its regulation must outweigh any burden imposed on interstate commerce, and any discrimination against it Old Substantive due process As long as no fundamental right is affected, use this test. Economic regulations (old substantive due process) upheld under this test Strict Scrutiny Test – Hughes test There must be a compelling (really legitimate) objective, The means