This Article challenges the Supreme Court's justification for embracing a strict proportionality standard in evaluating the proper measure of remedies, arguing that it is a subjective standard of review created by an activist Court rather than the objective standard its proponents claim.
Part I of the Article explains the theory of strict proportionality, whereby reviewing courts engage in what the author describes as a Three Bears theory of redress. Part II charts the evolution of remedial proportionality, tracing its development as applied to punitive damages and injunctions, while considering the role of the legislature in creating "congruent and proportional" remedies under Section 5 of the Fourteenth Amendment. Part III addresses the primary justifications put forward for embracing a strict proportion doctrine for remedies, namely rationality, restraint, and reciprocity. In Part IV, the author deconstructs these justifications: rationality acts as a mask of objectivity; restraint is a rule of deference to defendants; and proportionality encourages judicial activism. In conclusion, the author argues that reviewing courts should return to a deferential standard with respect to damages. This standard allows reviewing courts to utilize a weaker standard of proportionality to capture grossly excessive awards while restoring respect to finders of fact and reducing judicial policymaking.
Tracy A. Thomas,
Proportionality and the Supreme Court's Jurisprudence of Remedies,
59 Hastings L.J. 73
Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss1/2