Marcy Strauss (Loyola Law School Los Angeles) has posted Re-Evaluating Suspect Classifications (Seattle University Law Review, Vol. 35, 2011) on SSRN. Here is the abstract:
-
In this article I argue that the factors commonly used to determine suspect status in equal protection jurisprudence (discrete and insular minority, political powerlessness, immutability, relevancy of trait and so forth) have been poorly defined by the courts despite over 50 years of consideration. The Supreme Court, as well as the lower courts, have not provided a coherent explanation for what factors trigger heightened scrutiny, creating a haphazard analytical framework where the boundary line between suspect and non-suspect classes is drawn imprecisely and inconsistently. The majority of the paper is devoted to trying to show that the factors have been poorly defined. In the conclusion, I briefly suggest some of the issues that should animate any future discussion about these factors.
Recommended.