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http://ssrn.com/abstract=1506660
 
 

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Engquist and the Erosion of the Equal Protection Clause: An Attempt to Stop the Creep of Irrational Dicta


Darien Shanske


University of California, Davis - School of Law

November 15, 2009

Hastings Law Journal, Vol. 61, p. 969

Abstract:     
This article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 128. S. Ct. 2146 (2008). Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found liable under the Equal Protection Clause for any action considered “discretionary.” It would be problematic if this striking curtailment of individual rights was actually required by the Supreme Court’s decision in Engquist, but the Court held no such thing, though the Court offered some expansive dicta that could be so interpreted. This article aims to counter the creep of these dicta among the lower courts and explains in particular why these dicta are not consistent with constitutional values.

Number of Pages in PDF File: 30

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Date posted: November 16, 2009 ; Last revised: November 14, 2012

Suggested Citation

Shanske, Darien, Engquist and the Erosion of the Equal Protection Clause: An Attempt to Stop the Creep of Irrational Dicta (November 15, 2009). Hastings Law Journal, Vol. 61, p. 969. Available at SSRN: http://ssrn.com/abstract=1506660

Contact Information

Darien Shanske (Contact Author)
University of California, Davis - School of Law ( email )
400 Mrak Hall Dr
Davis, CA 95616-5201
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