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Legal transformation in restricting human rights (HR) has become a crucial issue in efforts to prevent nepotism and corruption. This phenomenon creates a dilemma between maintaining government integrity and protecting human resources, such as the right to freedom of politics, expression, and work. This study aims to explore how the law in Indonesia has changed in restricting human resources to prevent nepotism and corrupt practices and analyze whether these restrictions are in line with the principles of justice and proportionality. The research method used is normative law, with a legislative approach and case studies. Secondary data were collected through analysis of laws, regulations, and court documents related to corruption and nepotism. The research findings show that legal transformation in Indonesia has resulted in stricter regulations on conflicts of interest; however, in some cases, restrictions on HR are considered excessive, leading to potential violations of individual rights. In conclusion, although there is a need to control nepotism and corruption, it is important for the government to ensure that HR restrictions remain proportional and in line with international standards. The implication of this study is the need for more comprehensive, transparent, and accountable legal reform. The government needs to ensure that any anticorruption regulations that restrict human rights are based on clear needs and are closely monitored to prevent abuse of power. Public involvement in oversight should also be increased to strengthen legal legitimacy and public trust. [ABSTRACT FROM AUTHOR]

The Constitutional Court, as a guardian of the Constitution, is obliged to ensure respect for the highest fundamental values, principles and guarantees of the constitutional order. The Constitutional Court exercises its concern for the highest constitutional values in a manner that, by calling upon them and interpreting them, it interprets all other constitutional norms, believing that the other constitutional provisions are a normative expression of the fundamental values and principles. The constitutional judges need to adjudicate and decide not only on the facts but also on the right in a way that, through the prism of the integrity of the highest constitutional values, principles and guarantees, prevents the consequences of the application of provisions that do not meet constitutional values. The majority of judges, in their analyses, legal opinions and arguments, decided on a selective and restrictive approach to interpreting the provisions of the Constitution, which, in my opinion, resulted in a failure to provide a comprehensive interpretation and analysis that would fully address the allegations contained in the initiative. The goal of this analysis is to contribute to clarifying the longstanding (and still present) dilemmas and controversies related to the concept, nature, characteristics, effects and consequences of the theories, manners and methods of interpreting constitutional values, principles and norms. [ABSTRACT FROM AUTHOR]

How do populations facing external aggression view the costs and benefits of self‐defense? In Western countries, war support has been shown to follow cost–benefit calculations, resembling the moral principle of proportionality. A categorical position, in contrast, means supporting self‐defense regardless of the costs. To evaluate which moral principle populations facing external aggression follow, we conducted a conjoint experiment with 1,160 Ukrainians in July 2022. We examine support for different strategies Ukraine could pursue against Russia, which vary regarding the political autonomy and territorial integrity they afford and three costs: civilian and military fatalities, and nuclear risk. We find that Ukrainians do not trade off autonomy or territory against these costs. A new method to rank conjoint‐attributes, computing "nested" marginal means, shows that respondents categorically reject political or territorial concessions, regardless of costs. This provides first experimental evidence that populations resisting external aggression do not subject war outcomes to cost–benefit calculations. [ABSTRACT FROM AUTHOR]

In response to the Russian invasion of Ukraine, the European Union (EU) has adopted a vast range of unilateral sanctions (or 'restrictive measures') targeting almost every facet of the Russian economy. These events mark a turning point in the EU's approach to sanctions. In a brief timespan, the EU's sanctions practice has expanded significantly in its scope, reach, and hard-line political discourse, aligning more closely with the assertive stance of the United States. The collateral effects of these sanctions have reverberated globally, raising questions about their proportionality. This article explores the legal boundaries framing EU sanctions, examining the principle of proportionality across EU law, World Trade Organization (WTO) law, and customary rules on State responsibility. Through a detailed analysis of the various proportionality standards present in these legal regimes, it seeks to determine the adequacy of existing legal safeguards against a potential misuse of sanctions and addresses key challenges in regulating EU sanctions within the framework of proportionality. [ABSTRACT FROM AUTHOR]

This research focuses on the Proportionality test model of Competing Rights in practice in civil law countries (Germany and South Korea) and the Common Law System (United States and Canada). The research method used is a normative legal research method with statutory, comparative, and case approaches. The results show that the proportionality test is the "ultimate rule of law," a fundamental benchmark in judicial review, and has become a global constitutionalism recognised and applied internationally. Its application is structured and systematic with four test stages, such as German, Canadian, and South Korean models. Meanwhile, it is unstructured in the United States, and there is only one analytical tool (balancing test). In the case of decision, the four stages are only sometimes applied, but according to the needs of the analysis. If, at the third stage (necessity/minimal impairment), it is found that the object being tested is contrary to the Constitution, then the argumentation focuses on that analysis of it. The fourth stage is used if the case is more complicated and requires analysing the balance of norms and legal values. Meanwhile, in the Indonesian Constitutional Court practice, there is a proportional analysis, but it is partial, unstructured, and unsystematic. Therefore, in the future, it is essential to develop an Indonesian model of the principle of proportionality under the values of Pancasila and the 1945 Constitution. [ABSTRACT FROM AUTHOR]

This article examines the availability of injunctions and the award of damages for patent infringement under the Agreement on a Unified Patent Court, in light of the principle of proportionality. Part I focuses on the injunctive relief and analyses the application of the principle of proportionality to injunctions, outlining key factors and scenarios. Part II, which will be published in the next issue, discusses the principles and methods applicable to the calculation of damages, assessing their suitability in light of the principle of proportionality, as defined in European Union law and in the case law of select contracting states. [ABSTRACT FROM AUTHOR]

The article is devoted to the research of the principles of organization and activity of the European Prosecutor's Office. The activities of the European Prosecutor's Office are based on principles that ensure the effectiveness and legality of its functioning, as well as guarantee the observance of the rights and freedoms of individuals. It was determined that according to the principle of independence, the European Public Prosecutor's Office acts in the interests of the EU, is free from any influence and does not seek instructions from any subjects. EU institutions, bodies, and agencies must respect the independence of the European Prosecutor's Office and refrain from trying to influence prosecutors in the process of exercising their powers. Each EU prosecutor and authorized prosecutor must be independent in the performance of their powers. Transparent procedures for the selection and appointment of prosecutors, their functional immunity, and a special procedure for removal from office serve as guarantees of independence. It was emphasized that the principle of the rule of law provides that the activities of the European Public Prosecutor's Office are based exclusively on EU law and are carried out in strict accordance with the Charter of Fundamental Rights of the EU. The principles of rule of law and proportionality are binding for the European Public Prosecutor's Office in all its activities. The principle of proportionality requires that the actions of the European Public Prosecutor's Office do not exceed the limits necessary to achieve its objectives. It was established that according to the principle of subsidiarity, the European Prosecutor's Office exercises its powers only in those cases when the goal cannot be achieved by the means of the member states. This ensures a balance between supranational and national levels of criminal prosecution. The principle of collegiality and internal hierarchy presupposes that decisions in the College and standing committees are made jointly in the established order. Authorized prosecutors are obliged to follow the instructions of the EU prosecutors, who, in turn, report to the Chief Prosecutor. It was found that the work of the European Prosecutor's Office is based on the principles of impartiality, fairness, efficiency and economy of procedural actions. The European Public Prosecutor's Office conducts its investigations in an impartial manner and tries to obtain all relevant evidence, both incriminating and exculpatory. The principles of transparency and accountability determine the obligation of the European Prosecutor's Office to annually publish a report on its activities and to inform the European Parliament, the Council of the EU and the European Commission about the results of its work. [ABSTRACT FROM AUTHOR]

It is inherent to the fundamental right to property that far from being absolute, the owners' rights may be limited in the general interest. As exemplified recently by unprecedented closures of restaurants and other businesses due to the COVID-19 pandemic, also large-scale and far-reaching limitations are broadly deemed justified. The outer boundary of these limitations appears to be the essence of the right, which may not be impinged upon. Yet, both this very term and its scope are fiercely contested. This article, thus, revisits the "essence" of a fundamental right in the context of the European Convention on Human Rights. Drawing on the example of the right to property under Art 1 of Protocol 1 (P1-1) to the ECHR, this contribution expounds the prevailing approaches to the essence of fundamental rights and highlights the discrepancies between the formally adopted absolute approach to the essence as a purportedly inviolable core and the relative understanding of this concept which sees it as part of the fair-balance test. As the ECtHR case law makes room for virtually any interference with P1-1 including expropriation without any compensation, it will be argued that an untouchable or pre-established essence is not a concept attributable to the right to property under the Convention. It is maintained, however, that the limited scope of the essence is consistent with the underlying principles of the Convention as well as the intrinsic social function of private property. [ABSTRACT FROM AUTHOR]

How should we think about the Jewish community's punishment of Jewish kapos, councilmembers, and police officers after the Holocaust? Or of Americans who fire, divorce, or shun participants in the January 6 attempted auto-coup? In the American context, the invocation of 'cancel culture' or 'wokeness' reflects concern about the defensibility of non-state practices of accountability. Setting aside for our purposes an analysis of the political uses and abuses of these terms, we focus here on a presumption underlying these complaints: actors are impermissibly, illegitimately, and disproportionately being held to account by non-state actors. Citizens, corporations, and civil society organizations are vocally and visibly taking accountability for wrongdoing into their own hands. Such non-state accountability practices are particularly fraught because they raise fundamental questions about the proper regulatory role of the state and of law with respect to private responses to wrongdoing. Theories of criminal punishment currently explain why the state can and ought to respond to certain categories of criminal wrongdoing and the unique standing of the state to punish in the form of incarceration. However, such theories do not provide straightforward guidance for non-state punishment as regards: who has the standing to engage in punishment; what would constitute adequate due process; and how to assess proportionality. To begin to address the range of issues non-state punishment raises, we argue it is a mistake to lump into a single normative category all practices of non-state punishment. This paper provides a conceptual map of four categories of punishment: ordinary state punishment, ordinary non-state punishment, transitional state punishment, and transitional non-state punishment. The map distinguishes punishment along two dimensions, which affect the specific questions of standing and justifiability to which a given instance of punishment gives rise. The first dimension is the type of justice punishment promotes (ordinary justice or transitional justice). The second dimension is the agent meting out punishment (state actors or non-state actors). Each category of punishment faces distinct questions of standing and justifiability. Our conceptual map makes four contributions. First, it adds to a burgeoning discussion in legal theory and philosophy grounded in a recognition that the state does not have a monopoly over punishment. Second, it supplements an ongoing discussion in transitional justice literature and practice that emphasizes the problems with placing the state as the focal point of transitional justice. Our third contribution is to provide a framework for understanding and assessing American 'cancel culture.' For the universe of cancel culture cases that count as punishment, some cases are cases of ordinary non-state punishment, while others are cases of non-state transitional punishment. As we discuss, some pushback on so-called American cancel culture is category confusion or contestation about the need for transitional rather than ordinary justice and disagreement about which type of punishment, is in fact, occurring. Our framework also provides resources for the critical evaluation of defenses or critiques advanced of particular cases of non-state punishment. Fourth, our analysis of punishment provides a model that can be used to conceptualize other processes of accountability pursued by state and non-state actors, including reparations and truth-telling. [ABSTRACT FROM AUTHOR]

There has been extensive literature on proportionality that praises its global spread and delves into its embedment in domestic contexts. Through a series of case studies from around the world, however, this Article shows judicial practices countering, explicitly or implicitly, the popular notion of globalization of proportionality. In Canada and the United Kingdom, the Supreme Courts have directed the courts to depart from proportionality and rely on unreasonableness as a default standard of judicial review of administrative decisions. Courts in Hong Kong and Taiwan have developed various levels of intensity of review associated with proportionality; the lowest of which transforms proportionality, a rights protective doctrine, into a form of weak reasonableness review or deferential rational-basis review. The Chinese courts have fashioned proportionality into a tool to justify illegal government actions and advance authoritarian projects. This Article describes these judicial practices as counter currents of proportionality and argues that they are not merely variations of proportionality used in local contexts; instead, they have either deserted the doctrine entirely or contradicted its core features: (1) structured analytical procedure and (2) high-level human rights protection. In response to these counter currents, this Article proposes that once a court adopts proportionality in its adjudication, it must adhere to the structured analytical framework and insist on a minimum rigor of this doctrine. [ABSTRACT FROM AUTHOR]

Copyright of Revista Española de Derecho Constitucional is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In the wake of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP)--particularly with the perceived constriction of discovery through the revised federal proportionality standard in Rule 26(b)(1)--a wave of critics quickly emerged. Some commentators highlighted how procedural reforms heightened barriers to accessing federal courts, sharply limited claim development through discovery, and impeded opportunities for trial. Others detailed well-founded concerns about federal rulemakers' potentially nefarious motivations, given their mostly conservative, Republican, pro-corporate defense backgrounds. Still others rightly worried that the federal proportionality standard (with its six factors), when applied by certain federal judges, would potentially stifle discovery, thereby disproportionately harming disempowered plaintiffs and inhibiting a fair and just resolution on the merits. A few scholars urged state courts to resist calls for uniformity and blind adoption of the federal proportionality standard. Through the lens of a developing "Critical Procedure" framework, this Article provides an updated, more balanced assessment of these concerns and explores previously overlooked benefits of proportionality, with the goal of informing ongoing and future conversations among state rulemakers contemplating adoption of the 2015 federal proportionality standard. To ground these conversations, this Article offers the first systematic fifty-state survey examining the states' responses to the 2015 federal proportionality amendments. The Article also highlights recent trends and insights into rulemaking processes that reveal the complex shades of the politics of proportionality. The Article then argues that, although early critics of proportionality raised legitimate doubts about its efficacy, some of the initial predictions and critiques may have been overstated, and perhaps they were also simply effective in encouraging at least some federal judges to take a more cautious approach. In any event, the critiques also tended to obscure proportionality's potential benefits. This Article clarifies and highlights these affirmative benefits, positing that they should be front and center in state rulemakers' ongoing and future conversations. When properly understood and applied, proportionality principles can simultaneously balance power between asymmetrical parties, uplift the role of state court judges, and give a voice to vulnerable litigants. Indeed, the federal proportionality standard opens possibilities to realize and equalize access to justice to an even greater degree. [ABSTRACT FROM AUTHOR]

The article considers the principle of proportionality of the severity of punishment to public damage from an offense in terms of law and economics and criminology. It presents an overview of various criminological approaches to assessing social damage from different types of crimes, concluding that it is not possible to measure this damage precisely in each specific case. The methodology proposed by Sellin and Wolfgang (Sellin & Wolfgang 1964), which rates the severity of crimes based on sociological surveys, is highlighted as an effective basis for determining the severity of punishment proportional to public damage, though it has its drawbacks. The conclusion offers proposals for synthesizing all the approaches considered in the article to assess public damage from crime and establish the socially optimal severity of punishment for offenses. [ABSTRACT FROM AUTHOR]

The article focuses on a quantitative investigation of the principle of proportionality in the rulings of the Federal Constitutional Court. Topics include the examination of the principle's dominance in constitutional law, the innovative data collection methods used in the study, and a discussion of the findings in the context of current constitutional debates.

There exists a lively debate regarding whether proportionality outside of the European Convention on Human Rights is an independent ground for judicial review or overlaps with the Wednesbury Unreasonableness or irrationality ground and is indistinguishable from it. 1 This Article contends that proportionality, as a fair balance test, is an implied limitation to a statutory power and, therefore, constitutes an independent test within section 6 of the British Nationality Act 1981 (BNA 1981). Consequently, if a decision is disproportionate, it is amenable to judicial review on the existing ground of illegality. In that case, it is not necessary to consider an independent Wednesbury unreasonableness or irrationality test. [ABSTRACT FROM AUTHOR]

Developments in machine learning prompt questions about algorithmic decision-support systems (DSS) in warfare. This article explores how the use of these technologies impact practices of legal reasoning in military targeting. International Humanitarian Law (IHL) requires assessment of the proportionality of attacks, namely whether the expected incidental harm to civilians and civilian objects is excessive compared to the anticipated military advantage. Situating human agency in this practice of legal reasoning, this article considers whether the interaction between commanders (and the teams that support them) and algorithmic DSS for proportionality assessments alter this practice and displace the exercise of human agency. As DSS that purport to provide recommendations on proportionality generate output in a manner substantively different to proportionality assessments, these systems are not fit for purpose. Moreover, legal reasoning may be shaped by DSS that provide intelligence information due to the limits of reliability, biases and opacity characteristic of machine learning. [ABSTRACT FROM AUTHOR]

Copyright of Femina Politica is the property of Verlag Barbara Budrich GmbH and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article explores the fair collection of personal information under the Privacy Act 1988 (Cth) ('Privacy Act'). It outlines how fairness is typically assessed under the legislation in terms of transparency and argues that in a big data and digitally driven world, there is a need to consider fairness in greater detail. The limits of the traditional focus on transparency are explored through case examples. The challenges of the digital landscape are summarised. As the Privacy Act is about a balancing of interests, the article proposes that proportionality could be a helpful additional test for considering the individual's privacy related interests in the assessment of fairness -- a concept which may become more pervasive in the Privacy Act in line with proposals in the Attorney-General's current Privacy Act Review. Drawing upon European approaches, the article proposes a two-step method for Australia; the first step being transparency and the second step being proportionality. The proportionality test is developed based on structured proportionality in constitutional law and human rights legislation. [ABSTRACT FROM AUTHOR]

This article analyses the rationality of the principle of proportionality as a justificatory method for solving cases involving conflicts of constitutional principles. It addresses the "problem of comparability": a set of arguments claiming that proportionalists fail to understand what happens when constitutional principles collide. The problem of comparability suggests that balancing cannot be done if some conflicts of constitutional principles are, in reality, cases of noncomparability, incommensurability, incomparability, or vagueness. In this article, I challenge the views of both proportionalists and their skeptics. Against the skeptics, I argue that proportionality can survive the challenge posed by the problem of comparability. Against the proportionalists, I submit that proportionality cannot be understood as a system of tradeoffs between degrees of satisfaction of principles. If comparison among constitutional principles is to be rational, we need a different approach to normativity—one that allows for the possibility of parity. [ABSTRACT FROM AUTHOR]

Indemnification of incurred damages does not depend on its advance securement, although the law provides the possibility of securing compensation for potential losses in advance. The institution of guaranteeing compensation for anticipated losses is one of the tools for protecting the defendant's rights in the procedural guarantees system. Procedural law doctrine and practice sometimes shift the emphasis to already incurred damages and, thus, call it the institution of compensation for damages caused by an unjustified provisional remedy. The law of civil procedure defines the rule for securing the anticipated losses and not already existing or proven damage. The misperception of the concepts of loss and damage causes the wrong approach to the essence of the mentioned institution. The criteria and rules for securing compensation for anticipated losses and incurred damages require different approaches. In relation to the incurred or expected damages, it would be more appropriate to talk not only about the compensation of damages caused to the defendant through an unjustified provisional remedy but also through the dismissed claimant's claim. Considering all that, securing compensation for anticipated losses should include not only expected losses incurred because of unjustified provisional remedy but also as a result of unjustified/dismissed claims. The defendant may incur various expenses or lose income due to an unjustified provisional remedy or a claim. Attention should be devoted to compensating for the damages caused by an unjustified claim to the extent that, firstly, the measure of provisional remedy is based on alleged facts, and secondly, it is only one of the procedural actions directed against the defendant. The provisional remedy itself and securing compensation for the anticipated losses to the defendant form one of the procedural guarantees of effectively using the right to a fair trial and, accordingly, it is a part of the area protected by Article 6 of the European Convention on Human Rights and the first Clause of Article 31 of the Constitution of Georgia. Based on the principle of equality before the law and the court, as well as the principle of the equality of the parties in civil proceedings, the claimant also has the right to claim compensation for damages from everyone who, through illicit actions, prevented the enforcement of provisional remedy issued by the court. [ABSTRACT FROM AUTHOR]

State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions. This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect many more rights, temper rights with attention to communal welfare, include positive rights that identify government action as necessary to liberty, and emphasize rights required to sustain democracy. These distinctive founding documents, prizing individual and collective self-determination alike, require their own implementation frameworks—not federal mimicry. Although state constitutions differ markedly from their federal counterpart, they share features with constitutions around the world that courts adjudicate using proportionality review. Perhaps unsurprisingly, practices associated with proportionality already appear in some state decisions. Synthesizing and building on these practices, this Article argues for democratic proportionality review as a state-centered approach to adjudication. Such review tailors proportionality’s decisional framework to state constitutions committed to popular, majoritarian selfgovernment, and it recognizes state courts as democratically embedded actors, not countermajoritarian interlopers. After explaining how democratic proportionality review operates, the Article sketches some implications for contemporary debates about abortion, voting, occupational licensing, and more. [ABSTRACT FROM AUTHOR]

The principle of proportionality in criminal law is considered one of the fundamental principles, which entails determining punishments that correspond to the social harm caused by the crime. In the case of drug offenses, the application of this principle during the legislative stage requires careful consideration and subtlety on the part of the Legislature due to the complexity of such offenses. By taking into account the effective factors in the application of the principle of proportionality, unjustness in the determination and implementation of punishments can be minimized, and the expected goals of punishment, such as deterrence, can be better achieved. The behavior of the offender, the nature of the committed crime, the role of the accused, their involvement in the crime, and the severity and gravity of the offense are among the most influential factors in the application of the principle of proportionality in drug offenses. However, the Legislature in the Anti-Drug Law has solely emphasized the proportionality between the quantity of drugs and the level of punishment, disregarding other essential factors. [ABSTRACT FROM AUTHOR]

After comparing the preponderance and proportional approaches to adjudication by considering some cases susceptible to being decided in either way, the work develops an in-depth discussion of Lavie's stepwise approach, and points out some major concerns that it poses, namely concerns about conceptual resources, methodology and matters of principle. As to conceptual resources, the work addresses and clarifies what Lavie means by 'probability' and 'gradually increasing steps'; on methodology, it observes that reliance on Beckerian deterrence in this context is not convincing due to its reductionist motivational focus, which has also been challenged empirically by behavioural studies, and to its dismissal of the institutional function of trials; on matters of principle, finally, the work claims that the fundamental changes in the jural positions of claimant and defendant raise very high concerns in terms of the right to a fair trial. [ABSTRACT FROM AUTHOR]

This article outlines a model of proportionality analysis for the adjudication of positive constitutional economic and social rights. This model is the key for answering three questions: (i) First, to what extent constitutional courts hold the power to determine the substantive content of positive constitutional economic and social rights when the right- holders claim that their addressees have violated those rights by failing to comply with what they require? (ii) Second, how constitutional courts should ground the determination of that substantive content? (iii) Third, how constitutional courts should choose appropriate remedies when they have established a violation of one of those rights? Three distinctions are the basis of the above-mentioned proportionality model, namely, the differences: (i) between empirical and normative aspects of the adjudication of positive constitutional economic and social rights; (ii) between the level and mode of fulfillment of those rights; and (iii) between the competence of political authorities and courts to determine the appropriate level and mode of satisfaction. Using some elements of Wittgenstein methodology of family resemblance, this article adjusts the structure of proportionality analysis, which courts apply to adjudicate freedoms, and incorporates elements drawn from those three distinctions. The outcome is an analysis suitable for the specificities of the adjudication of positive economic and social rights. [ABSTRACT FROM AUTHOR]

Copyright of Revista Română de Drept European is the property of Wolters Kluwer Romania and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article sketches a case for the importance of allowing and protecting civil disobedience in a democratic society. There are weighty reasons for non-enforcement of certain laws under certain circumstances, which undermines the legalistic claim that justice requires police to faithfully (try to) enforce all laws at all times. Furthermore, questions about how the police should respond to disobedient demonstrations are not settled by popular theoretical treatments of civil disobedience. Police responses to disobedient demonstrations should be guided by a principle of proportionality. This proportionality requirement is more stringent in cases of self-generated needs for self-defense. Common police tactics like "skirmish lines" predictably escalate interactions and create a need for further defensive force, thereby violating the proportionality requirement. [ABSTRACT FROM AUTHOR]

The digital world occupying large swathes of individuals' lives in a trend that shows no signs of abating any time soon, the perennial question in human rights protection has been brought once again, forcefully, to the fore: do we need new human rights to deal with new societal and technological developments? Or are the ones already in place enough, complemented by recourse to the general principles of human rights, specifically to that of proportionality? Making use of the GDPR as a case-study in this regard, this paper elaborates upon the two, foreseeable, answers to this question. The first, within a digital constitutionalism context, suggests the introduction of new rights that will be suitable to protect individuals within the digital world. The second suggests that no new rights are necessary and that recourse should be made to the principle of proportionality instead. The choice by policy-makers between these two options will decide the future for the protection of individual rights in Europe. [ABSTRACT FROM AUTHOR]

The article proposes simplifying First Amendment analysis by prioritizing the restriction on government interference. It proposes a three-pronged test, compelling interest, narrow tailoring, and proportionality to streamline existing doctrinal tests and bring transparency to the evaluation of government restrictions on First Amendment rights.

I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR's doctrine of proportionality to be taken seriously as an account of this doctrine. I show how indirect utilitarianism can account for the relation between moral rights and Convention rights, the resistance to trade-offs that is a particular property of Convention rights and the nature of the public interest against which rights must be balanced. I argue that the indirect utilitarian account provides a coherent interpretation of the Court's jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the 'essence of rights'; and (iii) the Court's reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account's plausibility as an interpretation of the Court's doctrine of proportionality as a whole. [ABSTRACT FROM AUTHOR]

This contribution examines the extent to which the European Commission Impact Assessment (IA) Guidance could help the Court of Justice of the European Union to operationaliseits review of the application of general principles of EU law such as the principle of proportionality, the duty to state reasons and the duty of care when called upon to review uncertain scientific appraisals underlying EU legislative acts. In managing and regulating wicked problems, the EU institutions must base their actions on uncertain scientific appraisals. Impact assessment is a tool used by the Commission to assess the foreseeable direct and collateral effects (the impacts) of a regulatory project based on evidence. It aims to provide policymakers with the best accurate description of a problem and the consequences of the implementation of a policy option. It should therefore give dueconsideration to uncertainties in evidence used which may trump IA results. The contribution discusses the conditions under which the IA Guidance could be used as a framework to operationalise the judicial review of the application of the above-mentioned principles and assesses whether these conditions are met in the current state of EU law. [ABSTRACT FROM AUTHOR]

The article explores the application of the Excessive Fines Clause to civil fines imposed on the homeless for violation of the U.S. government's restrictions against sitting, lying and sleeping in public. It describes the history of the Excessive Fines Clause, as well as the proportionality principle adopted by the Supreme Court and applied by circuit court cases to evaluate the reasonableness of fines. It also reviews leading cases addressing the assessment of fines against homeless persons.

The dual use of satellite services raises the question about the legitimacy of the counter actions against their functionality during the armed conflict. This article focused on the examination of the content of the key principles of international humanitarian law, i.e. distinction and proportionality, concerning their application to the space activity. In this context, the criterions of pre and post evaluation of input of space services to the military operation were analysed. The risk of creation of a cloud of space debris because of a breach of humanitarian law was also observed. As a result, the suggestion to develop and ratify Additional Protocol IV that would distinguish what constitutes a civilian object from a military objective and determine the scope and extent of damage proportional to the attack, is argued as a means that able to save outer space resource and space services during the space and cyber wars. [ABSTRACT FROM AUTHOR]

Despite more than a century of reform, state constitutional law governing the state-local relationship remains unsatisfactory. Current doctrine governing intrastate federalism struggles with the same issues as the more familiar interstate federalism doctrine does: in both contexts courts have failed to choose between categorization and balancing. Two recent trends highlight this unsatisfactory pocket of state constitutional jurisprudence. One is hyperpreemption, where punitive state laws override local regulations and invade traditional zones of local police power. The other pressure point is the nationwide housing crisis, which provokes intrastate conflict when state governments act to preempt local zoning to permit more, denser, and more affordable housing. In this Article we propose proportionality review as the way forward. Conflicts over home rule represent a clash of foundational principles: between local autonomy and the general welfare of the community. Courts and scholars reach for proportionality in other similar constitutional traditions concerning a clash Of principles. Proportionality requires that one principle give way, but only as necessary to accomplish the important interest that justifies giving priority to one of the principles. In the state-local context, a proportionality analysis would minimize hyperpreemption because state interests are typically too slight in most cases and the state actions too sweeping. Yet targetedpreemption oflocal zoning authority to address the housing crisis probably would pass muster. Using California as an example, we examine recent California cases that suggest California law is trending toward proportionality review and argue that this trend should become the rule in every state. [ABSTRACT FROM AUTHOR]