Proportionality and the Supreme Court's Jurisprudence of Remedies PDF Download
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Author: Tracy A. Thomas
Publisher:
ISBN:
Category :
Languages : en
Pages : 57
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Book Description
This article exposes and critiques the development of the U.S. Supreme Court's cases on civil remedies since 2000. In these cases - on punitive damages, injunctions, and Section 5 remedies - proportionality emerges as the juridical norm. Proportionality mandates a strict balance and precise measurement in the formulation of civil remedies. At the international level, proportionality is a universal standard of rationality for courts evaluating the appropriateness of governmental intrusion on individual rights. American scholars have been wary of proportionality because of its potential for working against the protection of civil rights. These fears appear well-founded in the remedial cases where the Court has utilized proportionality to protect governmental and corporate interests against those of the individual. The remedial cases demonstrate the extent to which the Court has ventured into the arena of common-law remedies and, unexpectedly, altered the foundational principles of crafting relief. This article first takes a positivist approach to describe the Court's application of proportionality in recent cases. It explores the Court's decisions in cases such as eBay, Ayotte, Sherrill, Campbell, and Hobbs. In these cases, the Court appears to be searching for the perfect balance of right and remedy as it rejects alternative remedial measures that are deemed excessive. The mandated balance is premised on the Court's theory of remedial essentialism in which the remedy is formalistically distinct from the right. The article then engages in a normative analysis to evaluate whether proportionality should in fact be the guiding principle of remedies law. The Court appears to value the remedial proportionality rule for its rationality and objectivity, judicial restraint and minimalism, and reciprocal response. However, these justifications are myths: remedial proportionality is not an objective standard. Continued reliance upon these myths creates significant legal dangers by obscuring the subjective framing issues inherent in a rule of comparison and unduly deferring to the interests of the wrongdoers. When the rule of proportionality is deconstructed, it becomes apparent that proportionality is not a rule of restraint, but rather one of activism that should be abandoned.
Author: Tracy A. Thomas
Publisher:
ISBN:
Category :
Languages : en
Pages : 57
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Book Description
This article exposes and critiques the development of the U.S. Supreme Court's cases on civil remedies since 2000. In these cases - on punitive damages, injunctions, and Section 5 remedies - proportionality emerges as the juridical norm. Proportionality mandates a strict balance and precise measurement in the formulation of civil remedies. At the international level, proportionality is a universal standard of rationality for courts evaluating the appropriateness of governmental intrusion on individual rights. American scholars have been wary of proportionality because of its potential for working against the protection of civil rights. These fears appear well-founded in the remedial cases where the Court has utilized proportionality to protect governmental and corporate interests against those of the individual. The remedial cases demonstrate the extent to which the Court has ventured into the arena of common-law remedies and, unexpectedly, altered the foundational principles of crafting relief. This article first takes a positivist approach to describe the Court's application of proportionality in recent cases. It explores the Court's decisions in cases such as eBay, Ayotte, Sherrill, Campbell, and Hobbs. In these cases, the Court appears to be searching for the perfect balance of right and remedy as it rejects alternative remedial measures that are deemed excessive. The mandated balance is premised on the Court's theory of remedial essentialism in which the remedy is formalistically distinct from the right. The article then engages in a normative analysis to evaluate whether proportionality should in fact be the guiding principle of remedies law. The Court appears to value the remedial proportionality rule for its rationality and objectivity, judicial restraint and minimalism, and reciprocal response. However, these justifications are myths: remedial proportionality is not an objective standard. Continued reliance upon these myths creates significant legal dangers by obscuring the subjective framing issues inherent in a rule of comparison and unduly deferring to the interests of the wrongdoers. When the rule of proportionality is deconstructed, it becomes apparent that proportionality is not a rule of restraint, but rather one of activism that should be abandoned.
Author: E. Thomas Sullivan
Publisher: Oxford University Press
ISBN: 0195324935
Category : Law
Languages : en
Pages : 297
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Book Description
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. Two renowned legal scholars seek to advance such a theory.
Author: Mordechai Kremnitzer
Publisher: Cambridge University Press
ISBN: 1108497586
Category : Law
Languages : en
Pages : 689
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Book Description
A comparative and empirical analysis of proportionality in the case law of six constitutional and supreme courts.
Author: Niels Petersen
Publisher: Cambridge University Press
ISBN: 1107177987
Category : Law
Languages : en
Pages : 261
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Book Description
This book uses empirical analysis to show that courts refrain from using the proportionality test as a means of judicial activism.
Author: Vicki C. Jackson
Publisher: Cambridge University Press
ISBN: 9781316617007
Category : Law
Languages : en
Pages : 0
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Book Description
With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds.
Author: Kent Roach
Publisher: Cambridge University Press
ISBN: 1108284817
Category : Law
Languages : en
Pages : 633
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Book Description
An innovative book that provides fresh insights into the neglected field of remedies in both international and domestic human rights law. Providing an overarching two-track theory, it combines remedies to compensate and prevent irreparable harm to litigants with a more dialogic approach to systemic remedies. It breaks new ground by demonstrating how proportionality principles can improve remedial decision-making and avoid reliance on either strong discretion or inflexible rules. It draws on the latest jurisprudence from the European and Inter-American Courts of Human Rights and domestic courts in Australia, Canada, India, New Zealand, Hong Kong, South Africa, the United Kingdom and the United States. Separate chapters are devoted to interim remedies, remedies for laws that violate human rights, damages, remedies in the criminal process, declarations and injunctions in institutional cases, remedies for violations of social and economic rights and remedies for violations of Indigenous rights.
Author: Kellis E. Parker
Publisher: Aspen Publishers
ISBN:
Category : Appellate procedure
Languages : en
Pages : 928
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Book Description
Author: Tom Ginsburg
Publisher: Edward Elgar Publishing
ISBN: 0857931210
Category : Law
Languages : en
Pages : 681
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Book Description
This landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law. Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers over 100 countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach. Challenging the current boundaries of the field, the contributors offer diverse perspectives - cultural, historical and institutional - as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject.
Author: David M. Beatty
Publisher: Oxford University Press, USA
ISBN: 9780199269808
Category : Law
Languages : en
Pages : 228
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Book Description
The Ultimate Rule of Law addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, and social and economic rights. Decisions by the Supreme Courts of India, Japan, Canada, the United States, Ireland, Israel, the Constitutional Courts of Germany, Hungary, South Africa, and the European Court of Human Rights on such controversial issues as government funding of religious schools, abortion, same sex marriages, women in the military, and rights to basic shelter and life saving medical treatment are evaluated and compared. Beatty develops a radical alternative to the conventional view that in deciding these cases judges engage in an essentially interpretative, and thus subjective act, relying ultimately on their personal beliefs and political opinions. His analysis shows that it is possible to apply an impartial and objective method of judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty. Controversially, Beatty concludes that although this method of judicial review originated in the United States, American judges generally appear to be far less inclined to this conception of constitutional adjudication than their counterparts in Europe, Africa, and Asia.
Author: Martin Belov
Publisher: Routledge
ISBN: 1000707970
Category : Law
Languages : en
Pages : 201
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Book Description
This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.
