Document Type

Article

Publication Date

December 2007

Abstract

The evolution of the Supreme Court’s remedial jurisprudence evinces a quest for the ultimate judicial measure of appropriate relief, emerging as a norm of remedial proportionality. The Court’s decisions since 2000 on punitive damages, injunctions, and remedial legislation, all mandate a strict balance and precise measurement in the formulation of civil remedies. These cases have often fallen below the radar of general interest or have been ignored for their remedial significance. However, these cases demonstrate, somewhat surprisingly, the manner in which the Court has ventured into the arena of common-law remedies to unexpectedly alter the foundational principles of crafting remedies. This article exposes and critiques the extent to which proportionality dominates the remedial decisions of the United States Supreme Court in the new millennium. “Proportionality” is fast becoming a universal standard of rationality in the international public law context. Indeed, “[t]he concept has received far more elaboration and evaluation outside of the United States.” Proportionality is a general legal principle for avoiding excess and “reviewing the conformity to the law of any public discretionary action.” It is a “yardstick for measuring the appropriate relationship between the ends and the means of discretionary action.” International jurists use proportionality to evaluate the extent to which government intrudes on the paramount individual rights of citizens. However, American legal scholars have not embraced the advent of this new test because it “sounds unfamiliar, dangerous for the protection of civil rights, and illustrative of the conservatism of the Court.” These fears appear well-founded as the Supreme Court has co-opted proportionality as its own standard for protecting governmental and corporate interests against the individual plaintiff. The article begins by taking a positivist view to describe how the Court has utilized proportionality in its remedial decisions. It first explains the Court’s theory of remedial essentialism, which forms the foundation for the rule of remedial proportionality. The theory of remedial essentialism formalistically separates the remedy from the right, and it is this binary concept that establishes the premise of balance inherent in proportionality. This notion of balance or equilibrium draws on theories from Aristotle and law and economics mandating a precise remedial balance as a proxy for justice. Practically speaking, the rule of proportionality engages the court in a type of “Three Bears” analysis under which it evaluates whether the remedy is too big, too small, or just right. The article synthesizes the most recent Supreme Court cases on remedies to flesh out the principles of proportionality driving the Court’s decisions. These remedial decisions emanate from a wide variety of factual contexts, including abortion, water rights, insurance, patents, and tribal immunity. Yet, the decisions coalesce in transsubstantive fashion around the assumed foundational truth of remedial proportionality as the ultimate measure of civil justice. After tracing the development of strict proportionality in the Supreme Court, the article then engages in a normative analysis to evaluate whether proportionality should in fact be the guiding principle of remedies law. It begins with the identification of the Court’s justifications for the rule. The Court seems to value proportionality for its rationality and objectivity, judicial restraint and minimalism, and reciprocal response. However, the article reveals these claims of rationality, restraint, and reciprocity as myths. 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. The article ultimately rejects the continued use of remedial proportionality and its fostering of judicial activism by the highest Court. Instead, it recommends a return to the traditional judicial review of remedies deferring to the initial factfinders in each case.

Publication Title

Hastings Law Journal

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