Intermediate Scrutiny Pre-Intermediate Scrutiny

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. Joe says:

    The “not care about the facts” is the sort of stereotype that Prof. David Bernstein thrives in when rehabilitating Lochner.

    The word “arbitrary” is common — like in Meyer v. Nebraska, the law is deemed “arbitrary and without reasonable relation to any end within the competency of the State.” Lochner speaks of an “unreasonable, unnecessary and arbitrary interference.”

    I don’t know about “intermediate scrutiny,” but some shall we say rational basis with teeth standard (its flexibility not an invention of Anthony Kennedy) might be being apply. Prof. Victoria Nourse describes how this is a weaker test than the later fundamental right approach in her article on the “two Lochners.”