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The Rise and Fall of Proportionality Review in American Constitutional Jurisprudence

Speaker: Dr Kevin W. Gray, Legal Academic, Fordham University and New York University;Solo Practitioner, Toronto

Moderator: Stephen Minas, Professor of Law, Peking University School of Transnational Law

Date & Time: January 4, 2024 (Thursday), 7:00 PM (Beijing Time)

Location (In-Person Presentation): STL 207-208

Language: English


The argument proceeds as follows: the paper first develops a theory of proportionality review in Europe and in common law legal systems. The paper uses that theory as a means of comparing American constitutional balancing and proportionality review. It then argues that, despite American doctrine to the contrary, there has been significant use of proportionality review by some judges of the Supreme Court in American case law, notably in First, Second, and Fourteenth Amendment jurisprudence and in the constitutionalization of administrative law. The use of proportionality review has been obscured by tensions on the court, where judicial approaches to rights review have oscillated between rights formalism and other interpretative methods. It concludes that the Roberts court has attempted to put an end to proportionality review by adopting a newer model of rights review. That model, purportedly grounded in the historical understanding of rights, adopts a narrow but deep approach to rights protection, eschewing broader considerations of the public good or legitimate government interests in regulation.

Keywords: constitutional law; comparative law; proportionality; rights

Short Bio: Kevin W. Gray is a lawyer and legal academic who currently teaches at Fordham University and New York University and maintains a small law practice in public, constitutional, and transnational criminal law in Toronto.

He was previously a Dean Acheson Fellow and judicial law clerk for Judge Inga Reine of the Court of Justice of the European Union. Prior to that, he was counsel and an articling student at the Government of Ontario (Crown Law - Civil Division), where he practiced public, constitutional, and aboriginal law. He has also taught or been a visiting scholar at various universities, including Boston College, the University of Frankfurt, Osgoode Hall Law School, the University of Toronto, the American University of Sharjah, and the American University of Afghanistan.

He was awarded the Diploma in Public International Law from the Hague Academy of International Law (2015). Additionally, he holds a PhD from Laval University in legal and political philosophy (2011), a JD from Osgoode Hall Law School (2020), and an LLM from Columbia Law School (2002). He is currently a JSD candidate at Columbia Law School, working on the resistance of national courts to investor-state dispute settlement. He is also the general editor and the international law area editor of the Springer Global Encyclopaedia of Territorial Rights.

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