미국의 위헌심사기준으로서의 "이중 기준(二重基準) (Double Standard)"
"Double Standard" Approach As The Standard Of Judicial Review In The United States

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서울대학교 법학연구소
법학, Vol.50 No1 pp.419-454
미연방대법원의 위헌심사기준다층적 위헌심사기준 체계이중 기준 방식중도적 심사Supreme Court`s standard of judicial reviewdouble standard approachmulti-Level system of judicial scrutinyrationality review
Contemporary constitutional adjudication in the United States is characterized
by a system of judicial review composed of three distinctive levels of scrutiny
that are invoked in the respective spheres, referred to as strict, intermediate, and
minimal or rational-basis scrutiny. This multi-level system of scrutiny as
employed by the U.S. Supreme Court was established out of the constitutional
crisis occasioned during the New Deal era. Through the U.S. Supreme Court’s
continual and extensive elaboration, most notably in equal protection clause cases
spanning 1950s through 1980s, the system of multi-level scrutiny in the U.S. by
now has revealed certain structural flaws.
As criticized from both inside and outside the judiciary in the U.S., the
multi-level system is a rigidified approach that might hinder proper constitutional
analysis in the following respects. First, it might misdirect constitutional analysis
by deflecting the focus of inquiry toward abstractions, i.e., the tiers of scrutiny,
that might have little to do with the specific merits of a case. It might thus
dilute constitutional analysis by using a priori definitions, such as “fundamental
right” and “suspect classification,” to trigger the operative tier of scrutiny, thus
hampering legal analysis by focusing the inquiry toward abstractions.
Furthermore, the multi-level system might impede legal analysis by imposing
categories upon the constitutional balancing process. Finally, the a priori
categories used in the multi-level system have not always been capable of
providing internal stability for the system, as particularly indicated in the equal
protection cases pertaining to the suspect classifications.
Especially since mid-1980s, the U.S. Supreme Court has indicated increasing
deviation from the multi-level approach and has moved toward a less rigidified...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 50, Number 1/4 (2009)
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