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U.S. constitutional law, proportionality, and the global model

Moller, Kai (2016) U.S. constitutional law, proportionality, and the global model. LSE Law, Society and Economy Working Papers (06/2016). London School of Economics and Political Science, Department of Law, London, UK.

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Abstract

Following the global success of the principle of proportionality in human and constitutional rights adjudication, there is now an emerging debate among academics and judges in the United States as to whether proportionality ought to be introduced into U.S. constitutional law. My goal in this paper is to correct what I see as a misleading simplification in this discussion, namely the view that the United States could introduce proportionality while leaving the other features and characteristics of its constitutional rights jurisprudence intact. I argue that if proportionality is adopted, coherence requires that the other features of what in previous work I have labelled “the global model of constitutional rights” be embraced as well: rights inflation, positive obligations, socio-economic rights, and horizontal effect. Thus, proportionality is not just an isolated standard of review but part and parcel of a conception of rights that must be adopted or rejected as a whole.

Item Type: Monograph (Working Paper)
Official URL: http://papers.ssrn.com/
Additional Information: © 2016 The Author
Divisions: Law
Subjects: H Social Sciences > HN Social history and conditions. Social problems. Social reform
K Law > K Law (General)
Sets: Departments > Law
Date Deposited: 20 May 2016 14:00
Last Modified: 07 Sep 2020 23:06
URI: http://eprints.lse.ac.uk/id/eprint/66571

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