proportionality principles in american law controlling excessive government actions

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Proportionality Principles In American Law

Author : E. Thomas Sullivan
ISBN : 9780195324938
Genre : Law
File Size : 54. 96 MB
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From the ancient origins of Just War doctrine to contemporary theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. Two renowned legal scholars seek to advance such a theory.

Proportionality Principles In American Law Controlling Excessive Government Actions

Author : E. Thomas Sullivan
ISBN : 0195324935
Genre : Political Science
File Size : 35. 52 MB
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From the ancient origins of Just War doctrine to utilitarian and retributive theories of punishment, concepts of proportionality have long been an instrumental part of the rule of law and an essential check on government power. These concepts all embody the fundamental value that government and private actions should not be demonstrably excessive relative to their moral and practical justifications. In the American legal system, despite frequent though unacknowledged use of proportionality principles, there is no general theory of what permits courts to invalidate intrusive measures.In Proportionality Principles in American Law, two renowned legal scholars seek to advance such a theory. They argue that standards of review should be more clearly and precisely defined, and that in most circumstances every intrusive government measure which limits or threatens individual rights should undergo some degree of proportionality review. Across a wide range of legal contexts, E. Thomas Sullivan and Richard S. Frase identify three basic ways that government measures and private remedies have been found to be disproportionate: relative to fault; relative to alternative means of achieving the same practical purposes; and relative to the likely practical benefits of the measure or remedy. Using this structure, the book examines the origins and contemporary uses of proportionality principles in public law, civil liberties, and the criminal justice system, emphasizing the utility of proportionality principles to guide judicial review of excessive government measures.By constructing a new framework and a general theory for constitutional judicial review, Proportionality Principles in American Law will help courts more consistently and effectively apply proportionality principles to better serve their vital roles as guardians of individual rights and liberties.

The Arc Of Due Process In American Constitutional Law

Author : E. Thomas Sullivan
ISBN : 9780199990818
Genre : Law
File Size : 60. 38 MB
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Topics such as military tribunals, same-sex marriage, informative privacy, reproductive rights, affirmative action, and states' rights fill the landscape of contemporary legal debate and media discussion, and they all fall under the umbrella of the Due Process Clauses of the United States Constitution. However, what is not always fully understood is the constitutional basis of these rights, or the exact list of due process rights as they have evolved over time through judicial interpretation. In The Arc of Due Process in American Constitutional Law, Sullivan and Massaro describe the intricate history of what are currently considered due process rights, and maintain that modern constitutional theory and practice must adhere to it. The authors focus on the origins and contemporary uses of due process principles in American constitutional law, while offering an overarching description of the factors or normative concepts that allow courts to invalidate a government action on the grounds of due process. They also analyze judicial interpretations and expressions as a key manner and perhaps the most powerful source of how due process has taken form in the United States. In the process of charting this arc, the authors describe the judicial analysis of rights within each category applying an illustrative list, and identify several fundamental norms that span these disparate threads of due process and the most salient principles that animate due process doctrine.

Books In Print 2009 2010

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ISBN : 0835250210
Genre : Publishers' catalogs
File Size : 73. 14 MB
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Proportionality In International Law

Author : Michael Newton
ISBN : 9780199355044
Genre : Law
File Size : 73. 36 MB
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Proportionality is intimately linked to the overarching concepts of self-defense, lawful force, and the controlled application of violence. It is one of the most visible facets of humanitarian law designed to reduce unnecessary human suffering and avoid excessive damage to property, and the natural environment. However, its application has come under renewed scrutiny and sustained controversy as a result of wars against non-state actors and from the extensive use of drones, human shields, cyber war techniques, and counterinsurgency tactics. Proportionality in International Law critically assesses the law of proportionality in normative terms combining abstract philosophical and legal analysis with highly emotive contemporary combat cases. The principle of proportionality permits actions that are logically linked to the intended goal, and thus defines the permissible boundaries for the initiation and conduct of modern wars. The case studies discussed in this book are predominantly from the perspective of those who make decisions in the midst of armed conflict, bringing analytic rigor to the debates as well as sensitivity to facts on the ground. The authors analyze modern usages of proportionality across a wide range of contexts enabling a more complete comprehension of the values that it preserves. This book contrasts the applications of proportionality in both jus ad bellum (the law and morality of resort to force) and within jus in bello (the doctrines applicable for using force in the midst of conflicts). Proportionality in International Law provides the reader with a unique interdisciplinary approach, offering practitioners and policymakers alike greater clarity over how proportionality should be understood in theory and in practice.

The Ultimate Rule Of Law

Author : David M. Beatty
ISBN : 0199269807
Genre : Law
File Size : 65. 53 MB
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The Ultimate Rule of Law examines judgments of leading courts around the world on issues such as religious freedom, sex discrimination, and social and economic rights. Beatty develops a radical alternative to the conventional view that in deciding these cases judges engage in an essentially interpretative, and thus subjective act, relying ultimately on their personal beliefs and political opinions. Beatty's analysis shows that it is possible to apply an impartial and objective method of judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty.Readership: Scholars, practitioners, and students.

The Guide To American Law Supplement

Author : West Publishing Company
ISBN : 031403580X
Genre : Law
File Size : 34. 41 MB
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