When you get into the business of defining definitions, and then the definitions that define those definitions, and so forth down the line, you enter the world called an 'infinite regress' where you risk coming out on the other side very close to where you started, or nowhere at all. It's why legal argument, pushed too far at least, has been called an exercise in circular reasoning.
This way also lies madness.
The reason we have courts, or the Court, is to smite this Gordian knot with a judgment that says, "This far and no farther."
After all, it's human beings we're dealing with...
This is not meant to answer Prof. Lipkin's question, but simply to react to it; I'd be interested in other reactions to his query as well.
----- Original Message -----From: Robert Justin LipkinSent: 6/24/2003 5:05:47 AMSubject: Puzzles re: Grutter and KorematsuI have a minor (I hope) question about strict scrutiny and Grutter. Justice O'Connor maintains that the Court should defer to the University regarding whether diversity is essential to the University's educational mission. She then denies that this implies that the court's scrutiny is any less strict as a result. I seem to recall similar deference in Korematsu. My understanding of strict scrutiny is that when the test is applied deference is inappropriate. My question then is this: Is there a general account (or for that matter any account at all) of when (how?) deference is permissible when strictly scrutinizing government action.
One quick additional question. Is there literature specifically examining the justification of judg! e-made tests such as "strict scrutiny." And, as a reporter asked yesterday, how do we know what the definition of "compelling purpose" or "narrow tailoring" is? Thanks.
Bobby Lipkin
Widener University School of Law
Delaware
