Proportionality and the Supreme Court's Jurisprudence of Remedies

Posted: 7 Mar 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

Date Written: February 2007

Abstract

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 remedial legislation - 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, civil rights, punitive damages, injunctions

JEL Classification: K1, K10

Suggested Citation

Thomas, Tracy A., Proportionality and the Supreme Court's Jurisprudence of Remedies (February 2007). University of Akron Legal Studies Research Paper No. 07-07. Available at SSRN: https://ssrn.com/abstract=968688

Tracy A. Thomas (Contact Author)

University of Akron School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6617 (Phone)
330-258-2343 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
506
PlumX Metrics