Proportionality balancing and global constitutionalism

Columbia Journal of Transnational Law

Volumn 47, Issue 1, 2008, Pages 72-164

  Sweet, Alec Stone ^a   Mathews, Jud ^a  

^a YALE UNIVERSITY   (United States)

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EID: 57149121520     PISSN: 00101931     EISSN: None     Source Type: Journal    
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References (452)

1. See infra notes 27-30 and accompanying text.
2. See also ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (2000); RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (2004).
3. Eric Stein, Lawyers, Judges, and the Making of a Transnational Constitution, 75 AM. J. INT'L L. 1 (1981);
4. ALEC STONE SWEET, THE JUDICIAL CONSTRUCTION OF EUROPE 118-19 (2004);
5. JOSEPH H.H. WEILER, THE CONSTITUTION OF EUROPE: "DO THE NEW CLOTHES HAVE AN EMPEROR?" AND OTHER ESSAYS ON EUROPEAN INTEGRATION (1999).
6. Evert Albert Alkema, The European Convention as a Constitution and its Court as a Constitutional Court, in PROTECTING HUMAN RIGHTS: THE EUROPEAN PERSPECTIVE 41 (Paul Mahoney et al. eds., 2000);
7. Jean-Françoise Flauss, La Cour Européenne des droits de l'homme est-elle une cour constitutionnelle?, 36 REVUE FRANÇAISE DE DROIT CONSTITUTIONNEL 711 (1999).
8. See also STEPHEN GREER, THE EUROPEAN CONVENTION ON HUMAN RIGHTS (2006) (discussing the "constitutionalization" of the European Court of Human Rights and the "constitutional justice" dispensed by the ECHR).
9. DEBORAH CASS, THE CONSTITUTIONALIZATION OF THE WORLD TRADE ORGANIZATION (2005);
10. Ernst-Ulrich Petersmann, The WTO Constitution and Human Rights, 3 J. INT'L ECON. L. 19 (2000);
11. Joel P. Trachtman, The Constitutions of the WTO, 17 EURO. J. INT'L L. 623 (2006).
12. As a general principle of law, some form of proportionality is found in most stable legal systems. In criminal law, the severity of punishment is expected to be proportionate to the seriousness of the crime, in classic international law, proportionality is found in the law of reprisal and the use of force, and so on. Our focus is on PA as an argumentation and balancing framework.
13. Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 INT'L J, CONST. L. 574, 579 (2004).
14. In a leading child pornography case, R. v. Sharpe, [2001] 1 S.C.R. 45 (Can.), the Canadian Supreme Court held that a provision of the Criminal Code, as applied to Mr. Sharpe, violated his freedom of expression but was justified as a proportional measure designed to protect children from "exploitation." The approach thus contrasts with categorical, rule-based approaches to rights protection that seek to dispense with balancing once the nature and scope of the right has been defined. In this latter approach, a court might decide that Mr. Sharpe's rights were not abridged, since child pornography is not a protected form of expression, per se. Cf. United States v. Ferber, 458 U.S. 747 (1982).
15. Some courts - including those of the EU, the ECHR, and the WTO - normally use only a three-part test, leaving out the "legitimate purpose" stage. The analysis is thus entirely focused on the relationship between means and ends.
16. In the United States, the government will prevail once a court determines that a government measure under review furthers a "compelling interest" and has been "narrowlytailored." An exercise akin to balancing may take place at the compelling interest stage, but in some cases, it remains an open question whether a law that passes a LRM test nonetheless infringes more on the right at play than is tolerable; an obvious example is United States v. O'Brien, 391 U.S. 367 (1968), where the right being pleaded by Mr. O'Brien received no analytical attention at all.
17. The standard European reference is the debate between JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS 256-59 (William Rehg trans., The MIT Press 1996)
18. and Robert Alexy, Constitutional Rights, Balancing and Rationality, 16 RATIO JURIS 131, 131-40 (2003).
19. Daniel Halberstam surveys differing American and Continental approaches to balancing, and examines American ambivalence toward PA, in Desperately Seeking Europe: On Comparative Methodology and the Conception of Rights, 5 INT'L J. CONST. L 166 (2007).
20. In the American context, see T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987). U.S. and European perspectives on constitutional rights and balancing are debated in EUROPEAN AND U.S. CONSTITUTIONALISM (Georg Nolte ed., Council of Europe Publishing 2005).
21. See, e.g., DAVID M. BEATTY, THE ULTIMATE RULE OF LAW 159-76 (2004).
22. ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (Julian Rivers trans., Oxford Univ. Press 2002) (1986).
23. Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [1948] 1 K.B. 223 (U.K.).
24. Conference at European Univ. Inst. Florence, Italy, Nov. 16-17, 2007, Reasonableness and Law.
25. See PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISION MAKING: CASES AND MATERIALS 966 (5th ed. 2006) ("Today the Court describes the strict scrutiny test as whether the law in question is 'narrowly tailored to achieve a compelling governmental interest.'").
26. Despite proportionality's striking diffusion globally, there is only a small body of work that seeks to explain or compare how PA has emerged and with what consequences. A recent edited volume on "the migration of constitutional ideas" has no chapter devoted to the spread of proportionality. THE MIGRATION OF CONSTITUTIONAL IDEAS (Sujit Choudhry ed., Cambridge Univ. Press 2006). There are a few comparative treatments of proportionality, but these tend to be focused more narrowly on the doctrinal particulars of the various jurisdictions.
27. See, e.g., THE PRINCIPLE OF PROPORTIONALITY IN THE LAWS OF EUROPE (Evelyn Ellis ed., Hart Publishing 1999). Indeed, a number of works restrict their scope to European jurisdictions and/or proportionality as a principle of administrative law.
28. See, e.g., GEORGE GERAPETRITIS, PROPORTIONALITY IN ADMINISTRATIVE LAW: JUDICIAL REVIEW IN FRANCE, GREECE, ENGLAND AND IN THE EUROPEAN COMMUNITY (1997);
29. ROBERT THOMAS, LEGITIMATE EXPECTATIONS AND PROPORTIONALITY IN ADMINISTRATIVE LAW (2000). Although it is not his main focus, Nicholas Emiliou argues that the turn to PA follows from the growth of the modern interventionist state: proportionality is "a most appropriate tool to control interventionist activity for the creation of a welfare state.
30. " NICHOLAS EMILIOU, THE PRINCIPLE OF PROPORTIONALITY IN EUROPEAN LAW: A COMPARATIVE STUDY 21 (1996). David Beatty takes a broader view of proportionality in his book, THE ULTIMATE RULE OF LAW. Beatty presents proportionality as a principle of constitutional justice that deserves universal acceptance, and he briefly charts its adoption in a number of jurisdictions.
31. Beatty is less concerned with the mechanics of proportionality's diffusion, or PA's political effects; its diffusion provides evidence of its universalist potential as a "neutral principle." DAVID M. BEATTY, THE ULTIMATE RULE OF LAW 159 (2004). Vicki Jackson wrote a penetrating review of Beatty's book in which she offered some of her own thoughts about the pros and cons of proportionality analysis.
32. See Vicki C. Jackson, Being Proportional About Proportionality, 21 CONST. COMMENT. 803 (2004)
33. (reviewing DAVID M. BEATTY, THE ULTIMATE RULE OF LAW (2004)).
34. Jackson's review is among the more perceptive writings on proportionality analysis in English, but it does not engage with the question of proportionality's diffusion. Finally, Mattias Kumm brings considerations of normative jurisprudence to bear on the practice of PA in a recent paper that deserves wide consideration. Mattias Kumm, Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement, in LAW, RIGHTS, DISCOURSE: THEMES OF THE WORK OF ROBERT ALEXY 131 (Stanley Paulson & George Pavlakos eds., Hart 2007).
35. See HANS KELSEN, PURE THEORY OF LAW 208-09 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., Oxford Univ. Press 1992) (1934) (arguing that successful changes of the Grundnorm are ratified once they are "presupposed" by those who interpret and enforce the law).
36. See Alec Stone Sweet, Judicialization and the Construction of Governance, 32 COMP. POL. STUD. 147 (1999).
37. See also MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1986);
38. MARTIN SHAPIRO & ALEC STONE SWEET, ON LAW, POLITICS, AND JUDICIALIZATION (2002) (especially Chapter 4: Testing and Comparison).
39. SHAPIRO & STONE SWEET, supra note 19;
40. see also STONE SWEET, supra note 2, at 6.
41. See JANE FISHBURNE COLLIER, LAW AND SOCIAL CHANGE IN ZINACANTAN (1973).
42. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991).
43. Stone Sweet, supra note 19, at 157.
44. The crisis engendered by judicial lawmaking also generates mountains of legal materials - judicial decisions, commentaries and treatises-whose purpose is to reassert the coherence and underlying stability of the law, and therefore the legitimacy of courts, with reference to precedent and settled canons of interpretation and reasoning.
45. H.L.A. HART, THE CONCEPT OF LAW 124-47 (2d ed. 1994).
46. NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY (1978).
47. By the 1990s, the basic formula of the new constitutionalism - (a) a written, entrenched constitution, (b) a charter of rights, and (c) a review mechanism to protect rights - had become standard, even for what most of us would consider non-democratic, authoritarian states. There are 194 states in a recent data set on constitutional forms compiled by Alec Stone Sweet and Cristina Andersen. Of these, 190 have written constitutions, of which 183 contain a charter of rights. There have been 114 constitutions written since 1985 (not all of which have lasted), and we have reliable information on 106 of these. All 106 of these constitutions contain a catalogue of rights, and 101 provide for rights review by a supreme or constitutional court. It seems that the last constitution to leave rights out was the racist 1983 South African constitution, hardly a model to emulate.
48. STONE SWEET, supra note 1, at 37.
49. For an extended discussion, see Alec Stone Sweet, Constitutions and Judicial Power, in COMPARATIVE POLITICS 217-39 (Daniele Caramani ed., Oxford Univ. Press 2008).
50. See Alec Stone Sweet, Constitutional Courts and Parliamentary Democracy, 25 W. EUR. POL, 77 (2002),
51. (building on the contributions of Giandomenico Majone, Two Logics of Delegation: Agency and Fiduciary Relations in EU Governance, 2 EUR. UNION POL, 103 (2001)
52. and Terry Moe, Political Institutions: The Neglected Side of the Story, 6 J. L. ECON & ORG. 213 (1990)).
53. In practice, some elected officials participate in some of functions usually associated with principals, such as appointment. Nonetheless, they are more often merely "players" within the rule structures provided by the constitution. They compete with each other in order to be in the position to legislate, among other things.
54. Stone Sweet, Path Dependence, Precedent, and Judicial Power, in ON LAW, POLITICS, AND JUDICIALIZATION, supra note 19, at 112, 120.
55. We recognize that many academic lawyers and social scientists are deeply suspicious of purely doctrinal explanations of the evolution of legal systems. Our explanation relies on doctrine being conceptualized in a particular way, namely, as a discursive frame for norm-based argumentation that enables the litigating parties and the judge to bridge the domain of law and the domain of interest-based conflict.
56. Giovanni Sartor, A Formal Model of Legal Argumentation, 7 RATIO JURIS 177 (1994).
57. For a fuller discussion, see Stone Sweet, supra note 30.
58. S v Makwanyane & Another 1995 (3) SA 391 (CC) at 436 (S. Afr.).
59. See infra Part IV.A.2.
60. Hans Kelsen, La Garantie Juridictionnelle de la Constitution, 45 REVUE DU DROIT PUBLIC 197 (1928).
61. Stone Sweet, Constitutional Judicial Review, in ON LAW, POLITICS, AND JUDICIALIZATION, supra note 19, at 147.
62. Id.
63. Kelsen, supra note 36, at 221-41. Kelsen wrote: Sometimes constitutions themselves may refer to [natural law] principles, which invoke the ideals of equity, justice, liberty, equality, morality, etc., without in the least defining [precisely] what are meant by these terms. . . . But with respect to constitutional justice, these principles can play an extremely dangerous role. A court could interpret these constitutional provisions, which invite the legislator to honor the principles of justice, equity, equality. . . as positive requirements for the [substantive] content of laws.
64. ALEXY, supra note 13, at 13-18.
65. Id. at 44-61.
66. Id. at 47-48.
67. Id. at 47.
68. Rather than being a fixed property of the norms themselves (in the abstract, they are of equal weight).
69. ALEXY, supra note 13, at 50.
70. "Constitutions with constitutional rights are attempts simultaneously to organize collective action and secure individual rights." Id. at 425.
71. Id. at 399.
72. Id. at 102.
73. Id. at 100, 105.
74. As Alexy notes, the law of balancing is "not valueless. . . [but] identifies what is significant in balancing exercises." Id. at 105.
75. To our knowledge, this point has not been the focus of explicitly theorizing or empirical research.
76. One could also portray the second logic in strictly formal terms: the structure of modern rights provisions necessarily implies PA. Judges, however, have choices in how best to manage rights-based, intra-constirutional conflict - they were not required to adopt PA.
77. A generic idea of proportionality - the principle that there must be at least some minimal "fit" between actions and consequences, or between ends and means in law - has deep roots in all domains of German law. See generally Franz Wieacker, Geschichtliche Wurzeln des Prinzips der verhältnismäßigen Rechtsanwendung, in FESTSCHRIFT FÜR ROBERT FISCHER 867-69 (Marcus Lutter, Walter Stimpel, & Herbert Wiedemann eds., 1997). The idea is reflected in several provisions of the Civil Code, the private law codification that went into effect at the turn of the twentieth century, and in criminal law doctrines of long standing. These latter include the mandate that the punishment fit the crime, and the doctrine of extra-statutory necessity, according to which an otherwise criminal act can be justified when the act is necessary to avoid a greater harm.
78. See Strafgesetzbuch [StGB] [Penal Code], May 15, 1871, Reichsgesetzblatt [RGBl] 127, as amended, § 34 (concerning proportionate punishment), § 62 (concerning extra-statutory necessity);
79. GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 779-83 (2000) (discussing judicial antecedents of StGB § 34).
80. Today, the scope of Polizeirecht is evoked loosely by the phrase "police power." For a classic American statement of the "police power," see Ives v. South Buffalo Ry. Co., 201 N.Y. 271 (1911).
81. See CHRISTOPH GUSY, POLIZEIRECHT 132-33 (2003). Police law governs, for instance, the cooperation of the police with other authorities.
82. STEPHANIE HEINSOHN, DER Ö FFENTLICHRECHTLICHE GRUNDSATZ DER VERHÄTNISMÄ SSIGKEIT 14 (1997);
83. RUPPRECHT VON KRAUSS, DER GRUNDSATZ DER VERHÄLTNISMÄSSIGKEIT IN SEINER BEDEUTUNG FÜR DIE NOTWENDIGKEIT DES MITTELS IN VERWALTUNGSRECHT 7 (1955).
84. See Fritz Ossenbühl, Maßhalten mit dem Übermaßverbot, in WEGE UND VERFAHREN DES VERFASSUNGSLEBENS: FESTSCHRIFT FÜR PETER LERCHE ZUM 65. GEBURTSTAG 151, 152 (Peter Badura & Rupert Scholz eds., 1993);
85. see also HEINSOHN, supra note 56, at 9.
86. In Svarez's words: "The rights of command in a state or a ruler cannot be derived from an unmediated divine blessing, or from the right of the stronger, but they must be derived from a contract, through which the citizens of the state have made themselves subject to the order of the ruler for the advancement of their own common happiness." CARL GOTTLIEB SVAREZ.VORTRÄGE ÜBER RECHT UND STAAT (Hermann Conrad & Gerd. Kleinheyer eds., Westdeutscher Verlag 1960),
87. quoted in BARBARA REMMERT, VERFASSUNGS-UND VERWALTUNGSRECHTSGESCHICHTLICHE GRUNDLAGEN DES ÜBERMASSVERBOTS 15 (1995).
88. Thomas Würtenberger, Der Schutz vom Eigentum und Freikeit im ausgehenden 18. Jahrhundert, in, ZUR IDEEN-UND REZEPTIONSGESCHICHTE DES PREUSSISCHES ALLGEMEINEN LANDRECHTS 55, 63 (Walter Gose & Thomas Würtenberger eds., 1999). Von Berg was the first scholar to use the phrase " disproportionate" in the context of police law.
89. See Klaus Stern, Zur Entstehung und Ableitung des Übermaßverbots, in WEGE UND VERFAHREN DES VERFASSUNGSLEBENS: FESTSCHRIFT FÜR PETER LERCHE ZUM 65. GEBURTSTAG 165, 168 (Peter Badura & Rupert Scholz eds., 1993).
90. Würtenberger, supra note 59, at 63.
91. CARL GOTTLIEB SVAREZ,VORTRÄGE ÜBER RECHT UND STAAT 40 (Hermann Conrad & Gerd Kleinheyer eds., Westdeutscher Verlag I960),
92. quoted in Würtenberger, supra note 59, at 62.
93. Würtenberger, supra note 59, at 64-65, 67. The first was Baden in 1863; the second was Prussia in 1875.
94. HEINSOHN, supra note 56, at 8-14.
95. Stern, supra note 59, at 168.
96. Allgemeines Landrecht für die preußischen Staaten [A.L.R.], Feb. 5, 1794, § 10 II 17.
97. Perhaps the most significant figure in the mid-nineteenth century was Robert von Mohl, whose concepts of "objective disproportionality" and "subjective proportionality" anticipated proportionality in the narrow sense and the necessity principle, respectively. ROBERT VON MOHL, III POLIZEI-WISSENSCHAFT 40 (1844), discussed in HEINSOHN, supra note 56, at 33-34. While von Mohl built on the work of earlier jurists, he grounded proportionality not in natural rights theory, as Suarez had done, but in rule of law concepts.
98. For a fuller description of the broader theoretical underpinnings of nineteenth century public law thinkers, see REMMERT, supra note 58, at 52-98.
99. HEINSOHN, supra note 56, at 31 ;
100. KRAUSS, supra note 56, at 3.
101. Würtenberger, supra note 59, at 65, 67;
102. Preußischen Verwaltungsgerichtsgesetz [Prussian Administrative Court Act], July 3 1875, Preußische Gesetzsammlung 1875 at 375.
103. MICHAEL STOLLEIS, PUBLIC LAW IN GERMANY, 1800-1914 283 (Pamela Biel trans., Berghahn Books 2001).
104. Two examples will suffice by way of illustrating the early case law. In an 1886 case, the court ruled that the police could not require, on public safety grounds, a landowner to remove a post erected at the edge of his property. Rather, all that was necessary to protect the public was requiring the landowner to light the post after dark. As the court explained, "[t]he protection from accidents. . . is indeed the task of the police; this task and the authority finds its limit, however, in that the chosen measures may not extend farther than they must to meet the goal of eliminating the danger." Preußisches Oberverwaltungsgericht [PrOVG] [Prussian Higher Administrative Court] July 3, 1886, 13 Entscheidungen des preußischen Oberverwaltungsgerichts [PrOVGE] 426, 427. That same year, the court ruled that it was disproportionate, and hence, impermissible for the police to close down a shop in response to the shop owner's distribution of brandy without a license. The operation of the shop was itself not unlawful; only the distribution of brandy was. And so closing the shop was a more drastic step than the police needed to take to meet the legitimate goal of enforcing the license requirement. PrOVG April 10, 1886, 13 PrOVGE 424, 425.
105. Administrative courts in the other German states soon began following Prussia's lead, striking down police measures on LRM grounds. Stern, supra note 59, at 168.
106. See LOTHAR HIRSCHBERG, DER GRUNDSATZ DER VERHÄLTNISMÄSSIGKEIT 4 n.20, 5 n.21 (1980) for case and treatise citations.
107. Leading administrative law scholar Otto Mayer wrote at some length about proportionality in police law and in fact popularized the term "proportionality." See OTTO MAYER, DEUTSCHES VERWALTUNGSRECHT 267, 351 (1895);
108. see also George Frumkin, A Survey of the Sources of the Principle of Proportionality in German Law 29 (1991) (unpublished thesis, Univ. of Chicago) (on file with authors). Fritz Fleiner also captured the gist of proportionality with his memorable aphorism "The police should not shoot at sparrows with cannons." FRITZ FLEINER, INSTITUTIONEN DES DEUTSCHEN VERWALTUNGSRECHTS 404 (1928);
109. see also Thomas Henne, Mit Kanonen auf Spatzen schießen: Ein Beitrag Fritz Fleiners zur deutschen Juristensprache, 16 DEUTSCHES VERWALTUNGSBLATT 1094 (2002) (tracing the history of this metaphor).
110. See HIRSCHBERG, supra note 72, at 6.
111. The diversity of views is illustrated by a pair of 1929 cases concerning the same provision, § 127 of the Criminal Procedure Law [StPO]. That provision authorized citizens to detain fleeing criminal suspects. In the case before the Hamburg Oberlandesgericht, a motorist, (wrongly) believing the driver of an oncoming car to be using his headlights improperly, drove his car into the path of the other vehicle to force it to stop. In the case before the Jena Oberlandesgericht, a hunter encountered a trespasser who then fled; unable to force the man to stop, the hunter shot and wounded him. In both instances, the question was whether the defendants' conduct fell within what was permissible under § 127. To address the question, the court in Hamburg adopted a balancing analysis, asking whether the defendant's dangerous action - the only way he could have stopped the other driver - stood "in a correct relationship to the interests of catching the wrongdoer." Urteil vom 25.3.1929, Oberlandesgericht Hamburg, 58 Juristische Wochentschrift 2842 (1929). The court in Jena, on the other hand, expressly rejected any "interest balancing" (Güterabwägung): the question is merely whether less restrictive means were available to stop the trespasser. As less restrictive means were not available, the shooting was permissible. Urteil vom 31.5.1929, Jena Oberlandesgericht, 58 JURISTISCHE W OCHENSCHRIFT 3324 (1929). These cases may represent an unusual circumstance, in that they involve ordinary citizens exercising police powers, but they do indicate that balancing was at least contemplated in proportionality analysis.
112. Michael Stolleis, Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic, 16 RATIO JURIS 266, 270 (2003).
113. Id. at 273.
114. See also 4 DOKUMENTE ZUR DEUTSCHEN VERFASSUNGSGESCHICHTE 1918-33 at 36 (Ernst Rudolf Huber ed., 1992).
115. Stolleis, supra note 75, at 272.
116. See FRIEDER GÜNTHER, DENKEN VOM STAAT HER: DIE BUNDESDEUTSCHE STAATSRECHTSLEHRE ZWISCHEN DEZISION UND INTEGRATION, 1949-70, 190-91 (2004).
117. Bundesgericht [BGer] [Federal Court] Sept. 24, 1926, 52 Entscheidungen des Schweizerischen Bundesgerichts [BGE] I 222 (F.R.G.). The case concerned a challenge to an order by health authorities in the canton of Zug, who banned the sale of a non-medicinal udder salve for cows on the ground that farmers might misuse it, and avoid seeking medical treatment for serious udder problems. The Court held that the ban was not authorized under Zug's regulation for licensing the sale of medications, and further observed that, if the regulation could be read so expansively as to authorize the ban, then the regulation would violate the right to free trade and manufacture, as guaranteed in section 31 of the 1874 Constitution. Section 31 includes reservations that permit some economic regulation. The Court characterized the catch-all reservation clause for section 31 as permitting limitations on free trade "only when they are grounded in the public interest."
118. Id. at 227. Section 31 proscribes regulations that are not in the public interest, but also "those measures that may well lie in the public interest, but that could be replaced with a less far-reaching measure [eine weniger weitgehende Massnahme] with equivalent effect. Because in so far [as this is the case] the farther-reaching infringement is not justified in the common good."
119. Id. Following the German innovations of the late 1950s, the Swiss Supreme Court began applying a three-stage form of PA to restrictions on the freedom of trade and manufacturing. In time, this familiar form of analysis was applied to restrictions on other rights as well.
120. For a more detailed discussion of Swiss developments, see Beatrice Weber-Dürler, Zur neuesten Entwicklungen des Verhältnismä ssigkeitsprinzips, in MÉLANGES EN L'HONNEUR DE PIERRE MOOR 593 (Benoît Bovay & Minh Son Nguyen eds., 2005).
121. MICHAEL STOLLEIS, THE LAW UNDER THE SWASTIKA: STUDIES ON LEGAL HISTORY IN NAZI GERMANY 134 (Univ. of Chicago Press 1998).
122. Id.
123. Krüger wrote expansively about proportionality's scope already in 1950. See Herbert Krüger, Die Einschrankung von Grundrechten nach dem Grundgesetz, in 1950 DEUTSCHES VERWALTUNGSBLATT 625.
124. GÜNTHER, supra note 78, at 180.
125. Krauss also cited a Danzig police regulation that limited interventions to those that were justified on balance, considering the public and private interests at stake, to show that proportionality "in a narrow sense" was already present in positive law. KRAUSS, supra note 56, at 15.
126. Id. at 14.
127. Id.at 15.
128. Krauss linked the robust conception of rights in the Basic Law to the influence of natural rights thinking. Id. at 39-41.
129. Id. at 25.
130. Id. at 26.
131. PETER LERCHE, ÜBERMASS UND VERFASSUNOSRECHT: ZUR BINDUNG DES GESETZGEBERS AN DIE GRUNDSÄTZE DER VERHÄLTNISMÄSSIGKEIT UND DER ERFORDERLICHKEIT 20 (1961).
132. Id.
133. Id. at 48-49.
134. Id. at 54.
135. Id. at 54-55.
136. JÖRN IPSEN, DIETRICH MURSWIEK & BERNHARD SCHLINK STAATSZWECKE IM VERFASSUNGSTAAT-NACH 40 JAHREN GRUNDGESETZ: BERICHTE UND DISKUSSIONEN AUF DER TAGUNG DER VEREINIGUNG DER DEUTSCHEN STAATS R ECHTSLEHRER (1989).
137. BAYERISCHE VERFASSUNG [Constitution of Bavaria], art. 98, para. 2, translated at http://www.bayern.landtag.de/cps/rde/xbcr/SID- 0A033D451BE906D3/www/dateien/BV-Engl-BF.pdf.
138. Bayerischer Verfassungsgerichtshof [VerfGH Bayern] [Bavarian Constitutional Court] July 7, 1949, 1 II Entscheidungen des Bayerischen Verfassungsgerichtshofs [VerfGHE Bayern] 63 (76, 78) (F.R.G.).
139. VerfGH Bayern Dec. 28, 1956, 9 II VerfGHE Bayern 158 (177); .
140. see also Stern, supra note 59, at 171.
141. See Bundesverfassungsgericht [BVerfG][Federal Constitutional Court], June 3, 1954, 3 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 383 (399) (F.R.G.) (holding an electoral law constitutional because it expressed "a suitable means to serve the goal," and "did not overstep the border which is drawn by the principle of proportionality between means and ends.").
142. See also Eberhardt Grabitz, Der Grundsatz der Verhältnismäßigkeit in der Rechtsprechung der Bundesverfassungsgericht, 98 ARCHIV DES ÖFFENTLICHEN RECHTS 568, 569 n.1 (1973) (detailing earlier precursors of proportionality analysis in decisions of the GFCC).
143. Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO L.J. 383, 385 (2007).
144. BVerfG June 11, 1958, 7 BVerfGE 377 (404-05).
145. Section 138, essentially a ban on unconscionable contracts, provides that a legal transaction is void if "by exploiting the predicament, inexperience, lack of sound judgment, or considerable weakness of will of another, causes himself or a third party, in exchange for an act of performance, to be promised or granted pecuniary advantages which are clearly disproportionate to the performance." Bürgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, Reichsgesetzblatt [RGBl] 195, as amended, § 138, ¶ 2, translated at http://www.gesetze-im-internet.de/englisch- bgb/index.html.
146. Section 343 provides that "disproportionately high" liquidated damages can be reduced to "a reasonable amount," taking into account "every legitimate interest of the obligee, not merely financial interest." BGB § 343, ¶ 1.
147. Section 228 provides that a person who damages or destroys another's property acts lawfully, "if... necessary to ward off the danger [caused by the property] and the damage is not out of proportion to the danger." BGB § 228. See also BGB § 904.
148. Grimm, supra note 100, at 386.
149. BVerfG June 10, 1963, 16 BVerfGE 194 (201).
150. BVerfG Dec. 15, 1965, 19 BVerfGE 342 (348-49). In this case, the court found that a lower court violated the plaintiffs constitutional rights by not considering whether the pre-trial detention of the plaintiff, a 75-year-old retired admiral charged with murder in connection with an order he gave during World War II, was consistent with the principle of proportionality.
151. BVerfG Mar. 5, 1968, 23 BVerfGE 127 (133).
152. In the case cited in footnote 108, for instance - a challenge by a Jehovah's Witness to his punishment for refusing to perform civil service-the court skipped straight to proportionality in the narrow sense. Id. at 134.
153. BVerfG Jan. 15, 1970, 27 BVerfGE 344 (352).
154. By Eberhart Grabitz's count, by 1973 the FCC had already used proportionality analysis in 132 cases. Grabitz, supra note 99, at 570 n.3 (1973).
155. The classic study is CHRISTINE LANDFRIED, BUNDESVERFASSUNGSGERICHT UND GESETZGEBER (The Federal Constitutional Court and the Legislature) (1984).
156. See also ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE, 61-126 (2000);
157. Donald P. Kommers, The Federal Constitutional Court in the German Political System, 26 COMP. POL. STUD. 470 (1994);
158. Christine Landfried, Judicial Policymaking in Germany: The Federal Constitutional Court, 15 W. EUR. POL. 50 (1992).
159. BVerfG Jan. 15, 1958, 7 BVerfGE 198.
160. In the 1950s, Dürig was the principal proponent of the view that the GG set out "an objective order of values" that penetrated every aspect of the legal order. See Günter Dürig, Grundrechte und Zivilrechtsprechung, in VOM BONNER GRUNDGESETZ ZUR GESAMTDEUTSCHEN VERFASSUNG: FESTSCHRIFT ZUM 75. GEBURTSTAG VON HANS NAWIASKY 157 (Theodor Maunz ed. 1956).
161. In its Lüth ruling, supra note 113, the GFCC borrowed heavily from Dürig's thesis, which held that constitutional rights applied in private law relationships, thereby expanding the scope of constitutional balancing in the private law dramatically. We thank Robert Alexy for alerting us to Dürig's contribution.
162. BVerfG Jan. 15, 1958, 7 BVerfGE 198 (205).
163. WOJCIECH SADURSKI, RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POST-COMMUNIST STATES OF CENTRAL AND EASTERN EUROPE 287 (2005) ("The Courts in Central and Eastern Europe have clearly followed the path of the proportionality doctrine as developed by their Western counterparts, and in particular, by the European Court of Human Rights."), Sadurski discusses the use of PA by the courts of Bulgaria, Croatia, Lithuania, Slovakia, Slovenia, Czech Republic, Poland, Estonia, Hungary, Romania, but the list is not exhaustive.
164. These included rights of denominational schools and some language rights. Constitution Act of 1867 §§ 93, 133.
165. CANADIAN BILL OF RIGHTS § 2: "Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared." Led to a mode of deferential textual analysis under Section 2, the Supreme Court did not develop coherent standards of review under the Bill of Rights regime.
166. It struck down only one statute under the Bill of Rights, in R. v. Drybones, [1970] S.C.R. 282 (Can.).
167. Janet L. Hiebert, New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?, 82 TEX. L. REV. 1963, 1970 (2004).
168. See also Andrew Lokan, Rise and Fall of Doctrine under Section 1 of the Charter, 24 OTTAWA L. REV. 163, 169 (1992).
169. CANADIAN CHARTER OF RIGHTS AND FREEDOMS § 1 (emphasis added).
170. See, e.g., Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357 (Can.) (holding that the claimed right was not implicated by the challenged statute); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (Can.) (holding that that the challenged statute was invalid because its purpose was impermissible).
171. Big M Drug Mart, [1985] 1 S.C.R.(Can.) at 352.
172. R. v. Oakes, [1986] 1 S.C.R. 103 (Can.).
173. Id. at 138-39.
174. Id. at 139.
175. Id. (internal citation omitted).
176. Id, at 141.
177. Id. at 142.
178. Lorraine E. Weinrib, Of Diligence and Dice: Reconstituting Canada's Constitution, 42 U. TORONTO L.J. 207, 211-18 (1992).
179. Janet L. Hiebert, The Evolution of the Limitation Clause, 28 OSGOODE HALL L.J. 103, 118-19 (1990).
180. The Canadian Charter of Rights and Freedoms, Revised Discussion Draft of Sept. 3, 1980, (Federal-Provincial Conference of First Ministers on the Constitution, Ottawa, Sept. 8-12, 1980), quoted in Hiebert, supra note 130, at 119 (1990) (emphasis added).
181. Janet Hiebert reports that the witnesses included "civil liberties groups, university professors, women's groups, ethnic associations, legal groups, policemen, and crown counsel," the "overwhelming majority" of whom were opposed to the limitation clause as written. Hiebert, supra note 130, at 122.
182. Hiebert, supra note 130, at 125-26. The provinces did insist on an override clause, to permit legislative overrides of Charter rulings, to counterbalance the more stringent requirement.
183. See Lorraine E. Weinrib, Canada's Constitutional Revolution: From Legislative to Constitutional State, 33 ISR. L. REV. 13, 31 (1999).
184. MORRIS MANNING, RIGHTS, FREEDOMS, AND THE COURTS: A PRACTICAL ANALYSIS OF THE CONSTITUTION ACT, 1982 146 (1983).
185. Walter S. Tarnopolsky, The Constitution and Human Rights, in AND NO ONE CHEERED: FEDERALISM, DEMOCRACY, AND THE CONSTITUTION ACT 261, 269-70 (Keith Banting & Richard Simeon eds. 1983).
186. See infra Parts IV.B. 1 and IV.B.2.
187. More recently, the Court has become more open about acknowledging the German influence. See Attorney General of Canada v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610 (Can.).
188. Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, para. 103 (Can.).
189. Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (Can.).
190. As of January 13, 2009.
191. See supra note 118 and accompanying text.
192. Hiebert, supra note 119, at 1970.
193. Janet L. Hiebert, Parliamentary Bills of Rights: An Alternative Model?, 69 MOD. L. REV. 7, 27 (2006)
194. [hereinafter Hiebert, Parliamentary Bills of Rights];
195. see also Janet L. Hiebert, Legislating Under the Influence of Charter Norms 16 (forthcoming 2009)
196. [hereinafter Hiebert, Legislating Under the Influence].
197. Hiebert, Legislating Under the Influence, supra note 143, at 13.
198. Hiebert, supra note 119, at 1971.
199. Many provinces have adopted a similar prereview process. JAMES B. KELLY, GOVERNING WITH THE CHARTER: LEGISLATIVE AND JUDICIAL ACTIVISM AND FRAMERS' INTENT 214 (2005).
200. JANET L. HIEBERT, CHARTER CONFLICTS: WHAT IS PARLIAMENT'S ROLE? 12-13 (McGill-Queen's Press 2002).
201. KELLY, supra note 145.
202. HIEBERT, Legislating Under the Influence, supra note 143, at 10.
203. See Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited - Or "Much Ado About Metaphors", 45 OSGOODE HALL L.J. 1, 48 (2007).
204. The "dialogue" between the Parliament and the Supreme Court that ensues after the Court invalidates a statute has received sustained scholarly attention in Canada. See Hogg, Bushell & Wright, supra note 149, at 1;
205. Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn 't Such a Bad Thing After All), 35 OSGOODE HALL L.J. 75 (1997). At root, the subject of this "dialogue" is proportionality.
206. RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 (Can.).
207. HIEBERT, supra note 146, at 85.
208. Id.
209. Bill to Regulate the Manufacture, Sale, Labelling and Promotion of Tobacco Products: Hearings on C-71 Before the Standard Senate Committee on Legal and Constitutional Affairs, Issue 54 - Evidence - Afternoon Sitting (April 3, 1997), available at http://www.parl.gc.ca/35/2/parlbus/commbus/senate/ Com-e/lega-e/54evb-e.htm?Language=E&Parl=35&ses=2&comm-id=11.
210. Attorney General of Canada v. JTI-Macdonald Corp. [2007] 2 S.C.R. 610, para. 8 (Can.).
211. Id.
212. CANADIAN CHARTER OF RIGHTS AND FREEDOMS § 33. The "Notwithstanding Clause" applies to most, but not all Charter rights, and the legislation can have effect for not more than five years (subject to renewal).
213. Quebec, on the other hand, invoked the notwithstanding clause to maintain for several years a ban on non-French commercial signs in the face of a Supreme Court ruling that such a policy violated equality and language rights. An Act to Amend the Charter of the French Language, Statutes of Quebec, ch 54 [1988].
214. Hiebert, Parliamentary Bills of Rights, supra note 143, at 19-20.
215. See, e.g., Sujit Choudhry, So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis Under the Canadian Charter's Section 1, 34 SUP. CT. L. REV. (2d) 501, 506-09 (2006);
216. Lokan, supra note 119;
217. Lorraine E. Weinrib, Canada's Charter of Rights: Paradigm Lost?, 6 REV. CONST. STUD., 119 (2002). This view is far from universal. Other commentators have lamented the Court's "judicial activism" under the Charter.
218. See, e.g., F.L. MORTON & RAINER KNOPFF, THE CHARTER REVOLUTION AND THE COURT PARTY (2000);
219. see also Christopher P. Manfredi, The Day the Dialogue Died: A Comment on Sauvé v. Canada, 45 OSGOODE HALL L.J. 105, 116 (2007) (describing proportionality and minimal impairment analyses as "strong forms of substantive review").
220. RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, para. 160 (Can.). See also JTI-Macdonald Corp., [2007] 2 S.C.R. 610, para. 43 (Can.). Again, a certain measure of deference may be appropriate, where the problem Parliament is tackling is a complex social problem. There may be many ways to approach a particular problem, and no certainty as to which will be the most effective. It may, in the calm of the courtroom, be possible to imagine a solution that impairs the right at stake less than the solution Parliament has adopted. But one must also ask whether the alternative would be reasonably effective when weighed against the means chosen by Parliament. To complicate matters, a particular legislative regime may have a number of goals, and impairing a right minimally in the furtherance of one particular goal may inhibit achieving another goal. Crafting legislative solutions to complex problems is necessarily a complex task. It is a task that requires weighing and balancing. For this reason, this Court has held that on complex social issues, the minimal impairment requirement is met if Parliament has chosen one of several reasonable alternatives.
221. Id.
222. The Court has also deferred to Parliament on the rational connection element of the analysis. See JTI-Macdonald Corp., [2007] 2 S.C.R 610, para. 41. Deference may be appropriate in assessing whether the requirement of rational connection is made out. Effective answers to complex social problems, such as tobacco consumption, may not be simple or evident. There may be room for debate about what will work and what will not, and the outcome may not be scientifically measurable. Parliament's decision as to what means to adopt should be accorded considerable deference in such cases.
223. Id.
224. See PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA 816-17 (2003);
225. Choudhry, supra note 160.
226. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, para. 46.
227. Heaney v. Ireland [ 1994] 3 IR 593 (Ir.).
228. Rock v. Ireland [1997] 3 IR 484, 500 (Ir.).
229. See Ministry of Transport v. Noort [1992] 3 N.Z.L.R. 260 (C.A.) (citing Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313, 373-74 (Can.), for the proportionality test in Oakes). The program for the 2004 Australasian Institute of Judicial Administration conference on proportionality, featuring papers and speeches by Australian and New Zealand judges, gives one measure for the impact of proportionality in New Zealand. 22nd AIJA Annual Conference, Proportionality - Cost-Effective Justice? (Sept. 17-19, 2004) available at http://www.aija.org.au/ac04/papers.htm.
230. See also The New Zealand Legal Method Series, Rights and Freedoms in New Zealand: the Bill of Rights Comes of Age (July 27-28, 2007), available at http://www.law.auckland.ac.nz/uoa/fms/default/law/news/docs/Bill-of- Rights-Conference.pdf.
231. Bill of Rights Act 1990, 1990 S.N.Z. No. 109 § 4.
232. Id. § 6.
233. Id. § 5 ("Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.").
234. See Hansen v. The Queen [2007] 3 N.Z.L.R. 1 (S.C.);
235. Noort, 3 N.Z.L.R. at 260.
236. See Noort, 3 N.Z.L.R. at 283.
237. See PHILIP A. JOSEPH, The New Zealand Bill of Rights Experience, in PROMOTING HUMAN RIGHTS THROUGH BILLS OF RIGHTS: COMPARATIVE PERSPECTIVES 283, 305 (Philip Alston ed., Oxford Univ. Press 1999) (discussing Noort's affirmation of the Oakes test).
238. Moonen v. Film and Literature Bd. of Review [2000] 2 N.Z.L.R. 9, 17 (CA).
239. Hansen, [2007] 3 N.Z.L.R. 1.
240. See Hiebert, Parliamentary Bills of Rights, supra note 143, at 14-15.
241. Murray Gleeson, Chief Justice of Australia, Address at the Australian Bar Association Conference: Global Influences on the Australian Judiciary (July 8, 2002), available at http://www.hcourt.gov.au/speeches/cj/cj-global.htm.
242. S. AFR. (Interim) CONST. 1993. Section 33 provided that fundamental rights may be limited by law of general application, so long as the limitation is reasonable, "justifiable in an open and democratic society based on freedom and equality," and does not "negate the essential content of the right in question." The constitution further provided that limitations on a subset of fundamental rights - including the rights to human dignity, freedom from forced labor, and freedom of conscience - were permissible only when such limitations were "necessary." § 33(1).
243. Id. § 98(5).
244. S v Zuma & Others 1995 (2) SA 642 (CC) (S. Afr.).
245. Id. at 660.
246. Craig Smith, An American's View of The Federal Constitutional Court: Karlsruhe's Justices, 2 GERMAN L.J., available at http://www.germanlawjournal.com/article.php?id=17.
247. S v Makwanyane & Another 1995 (3) SA 391 (CC) at 436 (S. Afr.).
248. Id. at 434.
249. Id. at 436.
250. Id.
251. Id.
252. Id. at 436-39.
253. Id. at 448.
254. Id. at 446, 451.
255. See, e.g., S v Williams & Others 1995 (3) SA 632 (CC) at 649 (S. Afr.) ("In S v Makwanyane this Court dealt with s 11(2) of the Constitution on the basis that s 33(1) is applicable to breaches of that section. I follow the same approach in the present case." (citation omitted)).
256. The limitation clause reads: 36. Limitation of rights 1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including 1. the nature of the right; 2. the importance of the purpose of the limitation; 3. the nature and extent of the limitation; 4. the relation between the limitation and its purpose; and 5. less restrictive means to achieve the purpose. 2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
257. Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC). The Constitutional Court was given responsibility for certification by section 71(2) of the Interim Constitution.
258. S v Williams & Others 1995 (3) SA 632 (CC) at 804 (S. Afr.).
259. Id. at 804-05. It should be noted that proportionality gained other footholds in South African law in addition to section 36(1) during this period, although these developments are less relevant to our purposes. Section 33(1) of the Final Constitution created a "right to administrative action that is lawful, reasonable and procedurally fair." This provision, and legislation passed pursuant to it, has been described as imposing a form of proportionality test. See Promotion of Administrative Justice Act of 2000 § 6(f);
260. Carephone (Pty) Ltd v No & Others 1999 (3) SA 304 (LC) (S. Afr.);
261. CLAUDIA LANGE, UNREASONABLENESS AS A GROUND OF JUDICIAL REVIEW IN SOUTH AFRICA: CONSTITUTIONAL CHALLENGES FOR SOUTH AFRICA'S ADMINISTRATIVE LAW (2002);
262. Cora Hoexter, Standards of Review of Administrative Action: Review for Reasonableness, in A DELICATE BALANCE: THE PLACE OF A JUDICIARY IN A CONSTITUTIONAL DEMOCRACY 61, 64-65 (2006).
263. In addition, South Africa's Promotion of National Unity and Reconciliation Act, signed into law in 1995, created a committee competent to grant amnesty for "any act, omission or offence on the grounds that it is an act associated with a political objective." Promotion of National Unity and Reconciliation Act, No. 34 of 1995 § 18(1). In determining whether a given deed is "associated with a political objective" within the meaning of the statute, it lists a number of factors to be considered, including "the relationship between the act, omission or offence and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence to the objective pursued." Id. at § 20(3)(f) (emphasis added). Although the Amnesty Committee did not apply any sort of structured proportionality analysis, it did sometimes rely on a rough least restrictive means test to determine whether amnesty was appropriate.
264. See, e.g., Cornelius Johannes Van Wyk, Amnesty Decision No. 1050/96 (Dec. 6, 1996).
265. Albie L. Sachs, The Challenges of Post-Apartheid South Africa, 7 GREEN BAG 2d 63, 67 (2003).
266. S v Williams & Others 1995 (3) SA 632 (CC) (S. Afr.).
267. Nat'l Coalition for Gay and Lesbian Equality & Another v Minister of Justice 1999 (1) SA 6 (CC) (S. Afr.).
268. Minister of Home Affairs v Nat'l Inst. for Crime Prevention & the Re-integration of Offenders (NICRO) & Others 2005 (3) SA 280 (CC) (S. Afr.).
269. Prince v The President of the Law Soc'y of the Cape of Good Hope 2001 (2) SA 388 (CC) (S. Afr.).
270. See, e.g., S v Mello & Another 1998 (3) SA 712 (CC) (S. Afr.).
271. For a discussion of the Constitutional Court's jurisprudence under the limitations clause, see ZIYAD MOTALA & CYRIL RAMAPHOSA, CONSTITUTIONAL LAW: ANALYSIS AND CASES 414-32 (2002).
272. Kevin Iles, A Fresh Look at Limitations: Unpacking Section 36, 23 S. AFR. J. HUM. RTS. 68, 69 (2007).
273. In the words of Justice Ngcobo: None of these factors [in § 36(1)] is individually decisive. Nor are they exhaustive of the relevant factors to be considered. These factors together with other relevant factors are to be considered in the overall enquiry. The limitation analysis thus involves the weighing up of competing values and ultimately an assessment based on proportionality.
274. Prince v The President of the Law Soc'y of the Cape of Good Hope 2001 (2) SA 388 (CC) (S. Afr.) (internal citation omitted).
275. Stephen Gardbaum, Limiting Constitutional Rights, 54 UCLA L. REV. 789, 842 (2007).
276. Henk Botha, Rights, Limitations, and the (Impossibility of Self-Government, in RIGHTS AND DEMOCRACY IN A TRANSFORMATIVE CONSTITUTION 13, 14 n.5 (Henk Botha, Andre Van der Walt & Johan Van der Walt eds., 2003).
277. S v Manamela & Others 2000 (3) SA 1, 41 (CC) (S. Afr.) (O'Regan, J., and Cameron, AJ, dissenting). The majority in this case declared its agreement with these principles.
278. Id. at 20.
279. PHIROSHAW CAMAY & ANNE J. GORDON, EVOLVING DEMOCRATIC GOVERNANCE IN SOUTH AFRICA 316-17 (2004).
280. In addition to the National Assembly, South Africa's bicameral parliament includes a National Council of Provinces that represents the country's nine provinces and has a still more limited role in policy formation than the National Assembly.
281. DEWALD VAN NIEKERK ET AL., GOVERNANCE, POLITICS, AND POLICY IN SOUTH AFRICA 88-89 (2001);
282. see also Arthur Chaskalson, Dialogue: Equality and Dignity in South Africa, 5 GREEN BAG 2d 189 (2002);
283. Republic of South Africa, Department of Justice and Constitutional Development, The Legislative Process, available at http://www.doj.gov.za/ 2004dojsite/legislation/legprocess.htm.
284. ANTHONY BUTLER, CONTEMPORARY SOUTH AFRICA 95 (2004).
285. Id. at 95-96;
286. CAMAY & GORDON, supra note 206, at 337.
287. The others are Bhutan, New Zealand, and the United Kingdom.
288. Aeyal M. Gross, The Politics of Rights in Israeli Constitutional Law, 3.2 ISR. STUD. 80, 85 (1998);
289. Ran Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Israel's Constitutional Revolution, 33 COMP. POL. 315 (2001).
290. Defense (Emergency) Regulations, 1945 P.G. no. 1442, Supp. No. 2, p. 1089.
291. HCJ 361/82 Hamdi v. Commander of Judea and Samaria [1982] IsrSC 36(3) 439.
292. Id. at 440,
293. translated in I PALESTINE Y.B. INTL'L. L. 129, 130 (1984).
294. Id. at 443-44,
295. translated in I PALESTINE Y.B. INTL'L. L. 129, 133 (1984).
296. Id. at 439,
297. translated in I PALESTINE Y.B. INTL'L. L. 129, 129 (1984).
298. Id. at 444, translated in I PALESTINE Y.B. INTL'L. L. 129, 133 (1984).
299. HCJ 5510/92 Turkeman v. Minister of Defense [1993] IsrSC 48(1) 217.
300. Id. at 218-19.
301. Fania Domb, Judicial Decisions: Judgments of the Supreme Court of Israel Relating to the Administered Territories, 25 ISR. Y.B. ON HUM. RTS 323, 348 (1995) (summarizing Turkeman).
302. Turkeman, [1993] IsrSC 48(1) at 220.
303. Itzhak Zamir, Israeli Administrative Law Compared to German Administrative Law, 2 MISHPAT U'MIMSHAL [Law and Government in Israel] 109, 130 (1994). A 1990 piece by Professor Segal was also influential, although it lacked the extensive engagement with international materials.
304. Zeev Segal, Disproportionality in Administrative Law, 39 HAPRAKLIT 501 (1990).
305. 3 AHARON BARAK, INTERPRETATION IN THE LAW: CONSTITUTIONAL INTERPRETATION (1994).
306. HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Commc'n [1994] IsrSC 48(5) 412, 435.
307. HCJ 3477/95 Ben-Atiya v. Minister of Educ, Culture & Sports [1995] IsrSC 49(5) 1, 9. Ben-Atiyah was actually published after United Mizrachi Bank, but it was argued several months before United Mizrachi Bank.
308. Id.
309. Id. at 5. The matriculation examination is a national test required in order to graduate from High School (similar to the Regents diploma in New York).
310. Id. at 6.
311. Id. at 15-16.
312. CA 6821/93 United Mizrachi Bank pic v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.
313. Id. at 223-34.
314. See Omi, Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment, 31 ISR. L. REV. 754, 766 (1997).
315. Id.
316. Id. at 766-67.
317. Id. at 768.
318. Basic Law: Human Dignity and Liberty, 5752-1992, S.H. 1391 (Isr.). The limitations clause was amended in 1994 to permit explicit legislative override of Basic Law provisions. Basic Law: Human Dignity and Liberty-Amendment, 5754-1994, S.H. 1454 (Isr.), available at http://www.knesset.gov.il/laws/ special/eng/basic3-eng.htm.
319. See Omi, supra note 233, at 769.
320. Id. at 789. Barak's opinion was not the only one to mention proportionality; President Shamgar also mentioned proportionality as an element of the limitation clause.
321. See United Mizrachi Bank [1995] IsrSC 49(4) at 335-52. But because Justice Barak's discussion was more extensive and because he wrote for a majority of the Justices, while President Shamgar wrote only for himself, we focus on Barak's analysis.
322. See United Mizrachi Bank, [1995] IsrSC 49(4) at 436.
323. Id. Barak specifically mentions Canada and South Africa.
324. Id. at 436-37.
325. Id. at 446.
326. See, e.g., HCJ 4541/94 Miller v. Minister of Def. [1995] IsrSC 49(4) 94 (upholding right to equality in the context of military service);
327. HCJ 3278/02 Ctr. for the Def. of the Individual v. Commander of the IDF [2002] IsrSC 57(1) 385 (judicial review of administrative detention by army).
328. HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807, translated in ISR. L. REP. 264 (2004).
329. Id.
330. Id. at 861,
331. translated in ISR. L. REP. 264, 332 (2004).
332. Id. at 849-50,
333. translated in ISR. L. REP. 264, 308-09 (2004).
334. Id. para. 61.
335. Id. at 861-62,
336. translated in ISR. L. REP. 264, 323 (2004).
337. The court finds these rights within article 46 of the Hague Regulations and article 27 of the Fourth Geneva Convention. Id. at 832-36,
338. translated in ISR. L. REP. 264, 289-93 (2004).
339. Id. at 836-37,
340. translated in ISR. L. REP. 264, 293 (2004).
341. Id.
342. Id. at 837-48,
343. translated in ISR. L. REP. 264, 294-95 (2004).
344. Id. at 839-40,
345. translated in ISR. L. REP. 264, 296-97 (2004).
346. Aharon Barak, Human Rights in Israel, 39 ISR. L. REV. 12, 19 (2006).
347. Id.
348. Id.
349. The Court forcefully defended its prerogative to make an independent proportionality ruling in the Beit Sourik case: The second question examines the proportionality of the route of the separation fence, as determined by the military commander. This question raises no problems in the military field; rather, it relates to the severity of the injury caused to the local inhabitants by the route decided upon by the military commander... The standard for this question is not the subjective standard of the military commander. The question is not whether the military commander believed, in good faith, that the injury is proportionate. The standard is objective. The question is whether, by legal standards, the route of the separation fence passes the tests of proportionality. This is a legal question, the expertise for which is held by the Court." IsrSC 58(5) 807, para. 48.
350. See supra notes 2-4.
351. See Alec Stone Sweet, What is a Supranational Constitution? An Essay in International Relations Theory, 55 REV. POL. 441 (1994).
352. Neil Walker, The EU and the WTO: Constitutionalism in a New Key, in THE EU AND THE WTO: LEGAL AND CONSTITUTIONAL ISSUES 31 (Gráinne De Búrca & Joanne Scoot eds., 2001).
353. Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11.
354. We believe that the first instance in which the ECJ applied a LRM test was in the Internationale Handelsgesellschaft case, where it stated: "A public authority may not impose obligations on a citizen except to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure." T.C. HARTLEY, THE FOUNDATIONS OF EUROPEAN COMMUNITY LAW 152 (5th ed. 2003)
355. (citing Advocate General Dutheillet de Lamothe in Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel, 1970 E.C.R. 1125, 1146). In that case, the Advocate General derived it from former Article 40 (now Article 34) of the Treaty, the pertinent part of which states: "The common organization [for administering the Common Agricultural Policy] shall be limited to pursuit of the objectives set out in Article 33 and shall exclude any discrimination between producers or consumers within the Community."
356. Jürgen Schwarze, The Role of General Principles of Administrative Law in the Process of Europeanization of National Law, in STUDIES ON EUROPEAN PUBLIC LAW 24, 37 (Luis Ortega Alvarez ed., 2005). In any event, in Schraeder, the Court announced that "the principle of proportionality is one of the general principles of Community law. By virtue of that principle, measures . . . are lawful provided that [they] are appropriate and necessary for meeting the objectives legitimately pursued by the legislation in question. Of course, when there is a choice between several appropriate measures, the least onerous measure must be used . . . ."
357. Case 265/87, Schraeder v Hauptzollamt Gronau, 1989 E.C.R. 2237, 2269.
358. Schwarze, supra note 264, at 37.
359. STONE SWEET, supra note 2, at 165-70;
360. see generally Giacinto della Cananea, Beyond the State: The Europeanization and Globalization of Procedural Administrative Law, in STUDIES ON EUROPEAN PUBLIC LAW, supra note 264, at 68.
361. Case 4/73, Nold v. Comm'n, 1974 E.C.R. 491, 507. The Treaty of Rome contains no unified catalogue of rights and instead establishes them in various articles of Titles I and III. See supra note 263. The Court cited the "constitutional traditions common to the Member States" and the European Convention on Human Rights as sources. Id.;
362. see also Case 127/73, Belgische Radio en Televisie v. Societe Belge des Auteurs, Compositeurs et Editeurs, [1974] 2 COMMON MKT. L. R. 238, 246-47;
363. Joseph H.H. Weiler & Nicolas J.S. Lockhart, "Taking Rights Seriously " Seriously: The European Court and its Fundamental Rights Jurisprudence - Part I, 32 COMMON MKT. L. REV. 51, 84-94 (1995).
364. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, ¶ 8, Dec, 13, 2007, 2007 O.J. (C 306) 1, 13, available at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN: HTML.
365. The doctrine of supremacy, first announced in Costa, lays down the rule that, in any conflict between an EC legal rule and a rule of national law, the former must be given primacy. Case 6/64, Costa v. E.N.E.L, 1964 E.C.R. 1141, 1159-60. Indeed, according to the Court, every EC norm, from the moment of entry into force, "renders automatically inapplicable any conflicting provision of... national law," including national constitutional rules. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal, 1978 E.C.R. 629, 643. Where the doctrine of direct effect holds, EC norms confer - directly upon individuals - legal rights that public authorities must respect, and which can be pleaded in the national courts. The Treaty of Rome contains no supremacy clause, and does not provide for the direct effect of Treaty provisions or an important category of legislation, namely, the directive.
366. See STONE SWEET, supra note 266, at 66-71.
367. With Cassis de Dijon, the ECJ added "fiscal supervision," the "protection of public health," the "fairness of commercial transactions," and defense of the consumer,"
368. Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon), 1979 E.C.R. 649, 662, Subsequent rulings added the "improvement of working conditions,"
369. Case 155/80, Sergius Oebel, [1983] 1 COMMON MARKET. L.R. 390, 399, and the "protection of the environment,"
370. Case 302/86, Comm'n v. Denmark (Danish Bottles), 1988 E.C.R. 1-4607, 4630. Although the Court's source for these new headings is Article 28 (originally Article 30 before renumbering in 1999 by the Treaty of Amsterdam), they are subject to PA in exactly the same way that the Court treats claims for derogations under Article 30 (originally Article 36).
371. Case 8/74, Procureur du Roi v Benoît and Gustave Dassonville, 1974 E.C.R. 837.
372. Case 104/75, Officier van Justitie v De Peijper, 1976 E.C.R. 613.
373. Case 120/78, Cassis de Dijon, 1979 E.C.R. 649.
374. See, e.g., MICHELLE P. EGAN, CONSTRUCTING A EUROPEAN MARKET: STANDARDS, REGULATIONS, AND GOVERNANCE (2001);
375. MIGUEL POIARES MADURO, WE, THE COURT: THE EUROPEAN COURT OF JUSTICE AND THE EUROPEAN ECONOMIC CONSTITUTION (1998);
376. STONE SWEET, supra note 2, ch. 3 (concerning the free movement of goods);
377. Joseph H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403 (1991).
378. Its rulings on the Treaty can only be "overturned" by unanimous vote of the Member States, which now number twenty-seven.
379. Pescatore, a law professor, mentions proportionality as a general principle of law in a 1970 article, written while he was on the Court. Pierre Pescatore, Fundamental Rights and Freedoms in the System of the European Communities, 18 AM. J. COMP. L. 343, 350 (1970).
380. The ECJ may proceed through each stage of PA, including balancing in the strict sense, although the LRM test clearly has the most bite and importance. In addition, the ECJ sometimes integrates elements of balancing in the strict sense into necessity analysis. See FEDERICO ORTINO, BASIC LEGAL INSTRUMENTS FOR THE LIBERALISATION OF TRADE: A COMPARATIVE ANALYSIS OF EC AND WTO LAW 471 (2004).
381. For a recent overview of the state of PA in the Court's approach to Article 28, see Opinion of Advocate General Miguel Poiares Maduro, C-434/04, Ahokainen v. Virallinen Syyttäjä (Public Prosecutor), 2006 E.C.R. I-09171, ¶¶ 23-32.
382. See STONE SWEET, supra note 2, at 168-70.
383. Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222.
384. Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A) at 27 (1995).
385. Luzius Wildhaber, A Constitutional Future for the European Court of Human Rights?, 23 HUM. RTS. L.J. 161 (2002).
386. See Danny Nicol, Original Intent and the European Convention on Human Rights, 2005 PUB. L. 152.
387. According to the Court, the ECHR is not a "static" but a "living instrument," and its contents must be interpreted to secure effective rights protection for individuals, as European society evolves. Alongside this teleology of purpose and effectiveness, the Court has developed an overarching comparative methodology, one result of which is to ensure a creative role for itself. In defining the content and scope of Convention rights, the Court will typically survey the state of law and practice in the Member States, and sometimes beyond. Where it finds an emerging consensus on a new, higher standard of rights protection among states, it may move to consolidate this consensus, as a point of Convention law binding upon all members. Formally, the Court's role is restricted to determining whether a Member State has infringed upon Convention rights in any specific case. Increasingly, it would seem that the Court considers that an important oracular function inheres in its jurisdiction. Today, the Court is the unrivalled master of the Convention, a posture it uses to construct European fundamental rights in a prospective and progressive way.
388. In the beginning, the European Commission of Human Rights (established in 1954), was charged with monitoring compliance with rights under the Convention, filtering applications, and bringing enforcement actions to the European Court of Human Rights (established in 1959). With Protocol 11, the Commission was abolished and its most important functions were given to the Court.
389. EUROPEAN COMMISSION ON HUMAN RIGHTS, ANNUAL REPORT 2006, p 13, available at http://www.echr.coe.int/NR/rdonlyres/4729C3F9-D38F-42AC-8584-BCA56E26BC5C/0/ Annual-Report-2006.pdf. The 2007 Report has not yet been released.
390. These are contained in Articles 3 and 4, respectively.
391. See supra note 279.
392. "In practice, the European Court engages in balancing in the context of almost every Convention right." Julian Rivers, Proportionality and Variable Intensity of Review, 65 CAMBRIDGE L.J. 174, 182 (2006).
393. Alec Stone Sweet & Helen Keller, Introduction: The Reception of the ECHR in National Legal Orders, in A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS 19 (Alec Stone Sweet & Helen Keller eds., 2008).
394. Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [1948] 1 K.B. 223 (U.K.).
395. Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976).
396. Id. at 22.
397. Id. at 23.
398. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) at 24 (1981).
399. Smith and Grady v. United Kingdom, 29 Eur. H.R. Rep. 493 (1999).
400. Peck v. United Kingdom, 36 Eur. H.R. Rep. 41 (2003).
401. Id. at 137: Where a public authority has exceeded its powers or has acted irrationally or has reached a decision in breach of the rules of procedural fairness, then a person aggrieved may challenge the decision by means of judicial review. If a decision is so disproportionate to its intended objective as to be irrational, the Court will strike it down. The English courts do not recognise proportionality as a separate head of judicial review. However, in the case of R. (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport & the Regions [sic] [2001] 2 Weekly Law Reports 1389), Lord Slynn of the House of Lords stated obiter dictum that: 'I consider that even without reference to the Human Rights Act 1998 the time has come to recognize that this principle [of proportionality] is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law.'
402. Id.
403. See also Smith and Grady v. United Kingdom, 29 Eur. H.R. Rep. 493 (1999).
404. Human Rights Act, 1998, c. 42, available at http://www.opsi.gov. uk/acts/acts1998/19980042.htm.
405. In de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands, and Housing, 1 A.C. 69, 80 (P.C. 1998), the Privy Council of the House of Lords observed that to determine whether a limitation on Convention rights was arbitrary or excessive the
406. courts should ask themselves "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
407. Hirst v. United Kingdom, App. No. 74025/01 (Eur. Ct. H.R. Oct. 6, 2005).
408. Writing for the Divisional Court, Lord Justice Kennedy stated: "The
409. Id. at paras. 79-80.
410. See Isobel White, Convicted Prisoners and the Franchise, (House of Commons Library Standard Note SN/PC/1764, Jan. 24, 2007), available at http://www.parliament.uk/ commons/lib/research/notes/snpc-01764.pdf.
411. See supra note 289, at 686.
412. The volume, A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS, supra note 289, examines the influence of the case law of the European Court of Human Rights on eighteen national legal systems. Among other things, the book tracks and evaluates comparatively the effects of decisions on the part of national courts to adopt PA.
413. For a comparative assessment, see supra note 289, at 698-701.
414. Major conflicts have, in fact, ensued. See Elisabeth Lambert Abdelgawad & Anne Weber, The Reception Process in France and Germany, in A EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS, 35-37, 41.
415. OLIVIER LONG, LAW AND ITS LIMITATIONS IN THE GATT MULTILATERAL TRADE SYSTEM 70-71 (Martinus Nijhoff Publishers 1985);
416. Robert E. Hudec, The Judicialization of GATT Dispute Settlement, in IN WHOSE INTEREST?: DUE PROCESS AND TRANSPARENCY IN INTERNATIONAL TRADE 137 (M.H. Hart and D. Steger eds., 1992).
417. See Alec Stone Sweet, The New GATT: Dispute Resolution and the Judicialization of the Trade Regime, in LAW ABOVE NATIONS: SUPRANATIONAL COURTS AND THE LEGALIZATION OF POLITICS 118, 124 (Mary L. Volcansek ed., Univ. Press of Fl. 1997);
418. Stone Sweet, supra note 19, at 165.
419. The list begins after the "chapeau," which states: "Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures..." General Agreement on Tariffs and Trade (GATT) art. XX, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194.
420. We focus here on disputes in which Article XX exceptions are pleaded by States. The legal system also uses PA, for varied purposes, to deal with disputes arising under other WTO agreements. See Mads Andenas and Stefan Zleptnig, Proportionality: WTO Law in Comparative Perspective, 42 TEX. INT'L. L.J., 371, 416-23 (2007).
421. See, e.g., Robert Howse & Elisabeth Turk, The WTO Impact on Internal Regulations: A Case Study of the Canada-EC Asbestos Dispute, in TRADE AND HUMAN HEALTH AND SAFETY 77,77-78 (George A. Bermann & Perros C. Mavroidis eds., Cambridge Univ. Press, 2006).
422. See, e.g., Sarah Cleveland, Human Rights Sanctions and International Trade: A Theory of Compatibility, 5 J. INT'L ECON. L. 133 (2002).
423. See, e.g., Varamon Ramangkura, Thai Shrimp, Sea Turtles, Mangrove Forests and the WTO: Innovative Environmental Protection Under the International Trade Regime, 15 GEO. INT'L ENVTL. L. REV. 677 (2003).
424. A message reinforced by the AB's insistence that claims to exceptions under Article XX must take place before Panels may proceed to analysis under the "chapeau," which addresses free trade concerns, e.g., whether the measure under review constitutes "an arbitrary or unjustifiable discrimination between countries" or is a "disguised restriction on international trade." GATT, supra note 310, at art. XX.
425. See Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, paras. 112-22 WT/DS58/AB/R (Oct. 12, 1998).
426. On the relationship between proportionality analysis and the review of state measures under the chapeau, see Andenas & Zleptnig, supra note 311, at 413-15. They state, inter alia, that "the AB focuses on the balancing of competing rights, interests, and obligations as a pre-dominant feature within chapeau analysis ... [a] "process that resembles a proportionality analysis."
427. Id. at 414-15.
428. GATT Panel Report: United States - Section 337 of the Tariff Act of 1930, Nov. 7, 1989, GATT B.I.S.D. (L/6439-36S/345 36th Supp.) at 345 [hereinafter GATT Panel Report].
429. This reads as follows: Article III: National Treatment on International Taxation and Regulation ... 4. The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.
430. GATT, supra note 310, art. XX(d).
431. GATT Panel Report, supra note 316, paras. 3.62, 3.63.
432. The U.S. had argued that: "The requirement [of necessity] did not impose an obligation to use the least trade restrictive measure that could be envisaged; this would invite continuous disputes regarding measures that the CONTRACTING PARTIES had clearly intended to exempt from the obligations of the General Agreement." GATT Panel Report, supra note 316, para 3.59.
433. Id. recital 5.26.
434. GATT Panel Report: Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, Nov. 7, 1990, GATT B.I.S.D. (DS10/R-37S/200) [hereinafter Thai Cigarettes].
435. See, e.g., id., para. 3.
436. In violation of art. III (GATT), on national treatment, and taxation.
437. In violation of art. XI (GATT), prohibiting quantitative restrictions.
438. Thai Cigarettes, para. 76.
439. Id., para. 73. "[T]he Panel accepted that smoking constituted a serious risk to human health and that consequently measures designed to reduce the consumption of cigarettes fell within the scope of Article XX(b). The Panel [also] noted that this provision clearly allowed contracting parties to give priority to human health over trade liberalization; however, for a measure to be covered by Article XX(b) it had to be 'necessary.'"
440. Id.
441. Id. para. 75.
442. Id. paras. 72-80.
443. Id. para. 81.
444. As far as we are aware, systematic treatment of the development and use of PA by GATT panels and the WTO "courts" does not exist, but see Alan O. Sykes, The Least Restrictive Means, 70 U. CHI. L. REV. 403 (2003), which focuses on the evolution of necessity analysis and its relationship to "cost-benefit analysis" under conditions of regulatory uncertainty.
445. See Appellate Body Report, Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, paras. 162-66, WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:1, 5 (Dec. 11, 2000) [hereinafter Korea Beef].
446. Mr. Ehlermann sat on the AB from 1995-2001, finishing as its chairman. Previously he had served the European Commission as Director-General of the Legal Service (1977-87), and Director-General for Competition (1990-95). See Biography of Dr. Dr. h.c. Claus-Dieter Ehlermann, http://www.wilmerhale.com/ claus-dieter-ehlermann/ (last visited Oct. 20, 2008).
447. See, e.g., CASS, supra note 4, at 34; Andenas & Zleptnig, supra note 311, at 425-26.
448. Paul J. Dimaggio & Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields, in THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS 63, 67-69 (Paul J. Dimaggio and Walter W. Powell eds., Univ. of Chicago Press 1991).
449. Id. at 70-74.
450. See Grimm, supra note 100, at 393-95.
451. Jeremy Waldron, Some Models of Dialogues Between Judges and Legislators, 23 SUP. CT. L.REV. 7 (2004).
452. Aleinikoff, supra note 11.