Law, politics, and proportionality

This paper is likely to explore the relationship(s) suggested by Jamal Greene’s paper between judicial doctrine and political polarization, as well as the capacity of judicial decisions and judicial doctrine to shape decisions by public and political actors. Jamal also writes, “proportionality at its best helps us to see when a dispute is better resolved through politics than through juridification.” I may comment on the relationship of this idea to approaches to deference to political judgments on facts, and on values. Finally, this paper may explore arguments in support of Greene’s paper that are grounded less on the impact on political discourse and decisionmaking and more on a conception of the role of courts as places of justice and a skepticism about having courts reach for articulation of “rule”, rather than allowing general rules to emerge from multiple contextualized decisions.