In this seminar, we will explore proportionality as a doctrine that has been developed in public law adjudication in courts across Europe, as well as in Canada, Israel, South Africa and elsewhere. We will consider both positive and normative questions. More “positive” topics will include (1) understanding the fact of and reasons for the spread of proportionality as a doctrine in constitutional, international and administrative law, (2) the different forms in which proportionality analysis occurs, (3) the advantages its proponents claim for it and the disadvantages its proponents concede or that its opponents proffer, and (5) the question whether it recurs in different language in the United States. We will also try to systematically compare proportionality to alternative, more formalist approaches. More normative topics will include (1) the relationship(s) of proportionality to justice, as an aspiration, and its application across the work of different branches of governme nt; (2) whether constitutions should be understood to have justice-seeking aspirations and if so, whether proportionality as a judicial doctrine is necessarily related to those justice-seeking goals or whether other approaches may also be understood as justice seeking; (3) the relationship(s) between proportionality and democracy; (4) the relationship(s) between proportionality and institutional allocations of government authority in constitutional and administrative law and, more generally, (5) the relationships between the legitimacy or value of proportionality analysis and who the authorized decisionmaker(s) are.
Our materials will likely include some readings from jurisprudence/philosophy (including the defense of proportionality in optimizing constitutional principles by Robert Alexy, and Jurgen Habermas’ critique of Alexy), some from conceptual, doctrinal, interpretive or historically oriented legal scholarship (including, for example, David Beatty’s argument that proportionality is “the ultimate rule of law”, Frederick Schauer’s arguments on behalf of formalism, as well as critical works by, for example, Jacco Bomhoff, Grainne de Burca, David Law, Iddo Porat, Alec Stone Sweet, and Gregoire Webber); and caselaw or other legal materials concerning proportionality analysis (or its absence) in areas of constitutional, international or administrative law involving, for example, freedom from restraint or bodily harm in the face of claims about national security or the necessities of war; freedom of expression; equality and anti-discrimination law (e.g., in evaluating “affirmative action ” or “positive discrimination” measures); treatment of aliens or immigrants; environmental regulation; food or drug safety regulation; new reproductive technologies regulation.