TY - BOOK
T1 - Proportionality Principles in American Law
T2 - Controlling Excessive Government Actions
AU - Frase, Richard S.
AU - Sullivan, E. T.
PY - 2009
Y1 - 2009
N2 - Explicit and implicit proportionality principles have been applied in many legal contexts and formulations, but they all embody the fundamental value that government and private actions should not be demonstrably excessive relative to their moral and practical justifications. This book gives primary emphasis to the use of proportionality principles to guide constitutional judicial review of punishment and other intrusive government measures. There is currently no general theory of what normative concepts permit courts to find a government measure unconstitutional on the grounds of excessiveness; different factors are cited in different contexts, only occasionally using the language of proportionality. As a result, courts are not consistent in carrying out their reviewing functions, and hesitate to apply proportionality principles out of concern that such principles lack objective standards suitable for judicial enforcement. But a closer analysis of the diverse judicial review standards reveals more consistent patterns: across a wide range of legal contexts, courts are applying a small number of explicit or implicit proportionality principles. The three most commonly used principles measure the disproportionality of government measures relative to (1) the moral culpability of the person subject to the measure; (2) the likely social benefits of the measure; or (3) less burdensome measures that would achieve the same benefits. This book uses these latent concepts to construct a new framework for constitutional judicial review, and argues that more consistent definition and application of these proportionality principles will help American courts better serve their vital roles as guardians of individual rights and liberties
AB - Explicit and implicit proportionality principles have been applied in many legal contexts and formulations, but they all embody the fundamental value that government and private actions should not be demonstrably excessive relative to their moral and practical justifications. This book gives primary emphasis to the use of proportionality principles to guide constitutional judicial review of punishment and other intrusive government measures. There is currently no general theory of what normative concepts permit courts to find a government measure unconstitutional on the grounds of excessiveness; different factors are cited in different contexts, only occasionally using the language of proportionality. As a result, courts are not consistent in carrying out their reviewing functions, and hesitate to apply proportionality principles out of concern that such principles lack objective standards suitable for judicial enforcement. But a closer analysis of the diverse judicial review standards reveals more consistent patterns: across a wide range of legal contexts, courts are applying a small number of explicit or implicit proportionality principles. The three most commonly used principles measure the disproportionality of government measures relative to (1) the moral culpability of the person subject to the measure; (2) the likely social benefits of the measure; or (3) less burdensome measures that would achieve the same benefits. This book uses these latent concepts to construct a new framework for constitutional judicial review, and argues that more consistent definition and application of these proportionality principles will help American courts better serve their vital roles as guardians of individual rights and liberties
KW - Bibliographic information
KW - Disproportionality
KW - Excessiveness
KW - Individual rights
KW - Judicial review
KW - Proportionality
KW - Punishment
KW - Unconstitutional
UR - http://www.scopus.com/inward/record.url?scp=84921269085&partnerID=8YFLogxK
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U2 - 10.1093/acprof:oso/9780195324938.001.0001
DO - 10.1093/acprof:oso/9780195324938.001.0001
M3 - Book
AN - SCOPUS:84921269085
SN - 9780195324938
BT - Proportionality Principles in American Law
PB - Oxford University Press
ER -