Proportionality Principles in American Law: Controlling Excessive Government Actions

Hardcover | December 19, 2008

byE. Thomas Sullivan, Richard S. Frase

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From the ancient origins of Just War doctrine to utilitarian and retributive theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. These concepts all embody the fundamental value that governmentand private actions should not be demonstrably excessive relative to their moral and practical justifications. In the American legal system, despite frequent though unacknowledged use of proportionality principles, there is no general theory of what permits courts to invalidate intrusive measures. 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 rightsshould undergo some degree of proportionality review. Across a wide range of legal contexts, E. Thomas Sullivan and Richard S. Frase identify three basic ways that government measures and private remedies have been found to be disproportionate: relative to fault; relative to alternative means ofachieving the same practical purposes; and relative to the likely practical benefits of the measure or remedy. Using this structure, the book examines the origins and contemporary uses of proportionality principles in public law, civil liberties, and the criminal justice system, emphasizing theutility of proportionality principles to guide judicial review of excessive government measures. By constructing a new framework and a general theory for constitutional judicial review, Proportionality Principles in American Law will help courts more consistently and effectively apply proportionality principles to better serve their vital roles as guardians of individual rights andliberties.

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From the ancient origins of Just War doctrine to utilitarian and retributive theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. These concepts all embody the fundamental value that governmentand private actions should not be demonstrably...

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.

other books by E. Thomas Sullivan

Format:HardcoverDimensions:296 pages, 6.3 × 9.29 × 0.98 inPublished:December 19, 2008Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195324935

ISBN - 13:9780195324938

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Table of Contents

IntroductionPart I. Origins: From the Annals of History to the Twenty First Century1. Proportionality in International and Foreign Law2. Proportionality Principles in the Common Law of DamagesPart II. Proportionality in American Civil Jurisprudence3. Implicit Proportionality Principles in American Standards of Constitutional Review4. Explicit Proportionality Principles in Discrete Areas of American JurisprudencePart III. Proportionality in American Criminal Justice5. Procedure: Implicit Proportionality Limits on Police Powers and Defendant Rights6. Criminal Law: Implicit Proportionality Limitations on Criminal Liability7. Punishment: Explicit and Implicit Proportionality Limits on Sanction SeverityConclusionIndex