Proportionality and the Supreme Court's Jurisprudence of Remedies

57 Pages Posted: 29 Sep 2007

See all articles by Tracy A. Thomas

Tracy A. Thomas

University of Akron School of Law

Multiple version iconThere are 2 versions of this paper


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.

Keywords: Supreme Court, remedies, jurisprudence, punitive damages, civil rights injunctions

JEL Classification: K1

Suggested Citation

Thomas, Tracy A., Proportionality and the Supreme Court's Jurisprudence of Remedies. Hastings Law Journal, Vol. 59, 2007, U of Akron Legal Studies Research Paper No. 07-07, Available at SSRN:

Tracy A. Thomas (Contact Author)

University of Akron School of Law ( email )

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