Proportionality Principles in American Law Controlling Excessive Government Actions

Author: Thomas E. Sullivan; Richard S. Frase
Publisher: Oxford University Press USA
ISBN: 9780195324938
Published In: January 2009
Format: Hardback , 296 pages
Jurisdiction: U.S. ? Disclaimer:
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From the ancient origins of Just War doctrine to contemporary theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. The American legal system, despite frequent, though unacknowledged, use of proportionality principles, has not developed a general theory of proportionality.

In Proportionality Principles in American Law, two renowned legal scholars seek to advance such a theory. They argue that standards of review should be more clearly and precisely defined, and that in most circumstances every intrusive government measure which limits or threatens individual rights should undergo some degree of proportionality review.

Surveying the longstanding use of proportionality principles as well as examples from foreign and international law, E. Thomas Sullivan and Richard Frase identify three basic ways that government measures and private remedies have been found to be disproportionate: relative to fault; relative to alternative means of achieving the same practical purposes; and relative to the likely practical benefits of the measure or remedy.

Using this framework, the book examines the origins and contemporary uses of proportionality principles in public law, civil liberties, and the criminal justice system, emphasizing the utility of proportionality principles to guide judicial review of excessive government measures.

Seeking to categorize and harmonize a variety of judicial review standards and their underlying proportionality concepts, Proportionality Principles in American Law will help lawyers, judges, and legislators more consistently, and more effectively, apply proportionality principles and thus help American courts better serve their vital roles as guardians of individual rights and liberties.

Introduction:
Part I. Origins: From the Annals of History to the Twenty First Century
1: Proportionality in International and Foreign Law
2: Proportionality Principles in the Common Law of Damages
Part II. Proportionality in American Civil Jurisprudence
3: Implicit Proportionality Principles in American Standards of Constitutional Review
4: Explicit Proportionality Principles in Discrete Areas of American Jurisprudence
Part III. Proportionality in American Criminal Justice
5: Procedure: Implicit Proportionality Limits on Police Powers and Defendant Rights
6: Criminal Law: Implicit Proportionality Limitations on Criminal Liability
7: Punishment: Explicit and Implicit Proportionality Limits on Sanction Severity
Conclusion

E. Thomas Sullivan is Senior Vice President and Provost of the University of Minnesota and Julius E. Davis Chair in Law.

Richard S. Frase is the Benjamin N. Berger Professor of Criminal Law at the University of Minnesota.

"It is heresy in some circles to suggest that the Supreme Court could learn anything useful from the world outside our borders. This book argues that the European doctrine of proportionality not only helps us understand our existing constitutional rules more clearly but also leads to some significant improvements. Readers will find much to learn about our own constitutional system as well as European law. As the authors show, we need to take seriously the idea of proportionality between the ends and means of government action."--Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley

"In this important study in constitutional and public law, Professors Sullivan and Frase take on a familiar concept-proportionality--that is widely revered as a benchmark for mediating between conflicting values and interests. They show, through their comparative work and analysis of American law, how the differing meanings of proportionality indicate different processes of assessment. We should be grateful to the authors for so impressively drawing out these varying meanings and for developing a set of principles of proportionality that safeguard key values in the process of judicial review."--Andrew Ashworth, Vinerian Professor of English Law, All Souls College, Oxford University

"An important corrective for the practice of judicial review in American courts,Proportionality Principles in American Law argues that every intrusive government measure that threatens individual rights should undergo some sort of serious proportionality review. While proportionality principles are increasingly employed, courts have not been explicit about this fact and no unified theory has emerged; we can all be grateful for the conceptual groundwork and rigorous definitions developed here by E. Thomas Sullivan and Richard S. Frase. This book is certain to be an important addition to any public law scholar's library."--Herbert Hovenkamp, Ben V. and Dorothy Willie Professor of Law and History, University of Iowa