The Politics of Proportionality

31 Pages Posted: 19 Apr 2022 Last revised: 5 May 2022

See all articles by Nelson Tebbe

Nelson Tebbe

Cornell Law School

Micah Schwartzman

University of Virginia School of Law

Date Written: April 19, 2022

Abstract

In this review of Jamal Greene’s How Rights Went Wrong, we raise a series of questions about proportionality review as a model for adjudicating rights conflicts. The first is whether proportionality is justified as a matter of ideal theory. Even if it is well applied, is this approach normatively attractive? A second question is which institutions ought to apply this form of review—courts, legislatures, executive officials, or some other democratic bodies? A third is how proportionality works in practice, under nonideal conditions. Greene’s account also leads us to ask about the relation between two aims that seem to motivate much of his argument for proportionality, namely, reducing the level of conflict in our society and achieving a better balance of rights and interests. In short, proportionality promises to deliver more peace and more justice. Our last question is whether implementing proportionality review today would require significant trade-offs between these ends. In addressing these questions, our aims are mainly analytical, separating out various types of considerations that might count as reasons for supporting proportionality review. But we also consider whether proportionality should be adopted as a progressive reform strategy under polarized political conditions. The answer may turn on whether compromises for the sake of reducing social conflict could lead, paradoxically, to less peace and less justice.

Keywords: proportionality, constitutional rights, judicial decisionmaking, polarization, Supreme Court

Suggested Citation

Tebbe, Nelson and Schwartzman, Micah, The Politics of Proportionality (April 19, 2022). Virginia Public Law and Legal Theory Research Paper No. 2022-28, 120 Michigan Law Review 1307 (2022), Cornell Legal Studies Research Paper No. 22-19, Available at SSRN: https://ssrn.com/abstract=4087532

Nelson Tebbe

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

Micah Schwartzman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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