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47 Colum. J. Transnat'l L. 72 (2008-2009)
Proportionality Balancing and Global Constitutionalism

handle is hein.journals/cjtl47 and id is 74 raw text is: Proportionality Balancing and Global Constitutionalism ALEC STONE SWEET* AND JUD MATHEWS** Over the past fifty years, proportionality balancing- an analytical procedure akin to strict scrutiny in the United States-has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part 11 proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes a doctrinal underpinning for the expansion ofjudicial power globally. Although there is significant variation in how it is used, judges who adopt proportionality position themselves to exercise dominance over policymaking and constitutional development. 1. INTRODUCTION ....................................................................... 73 * Leitner Professor of Law, Politics, and International Studies, Yale Law School. * J.D. Yale Law School (2005); Ph.D. student, Department of Political Science, Yale University. We thank all those who have provided comments on drafts of this article and other helpful input, including especially Robert Alexy, Aharon Barak, Eshchar Ben Shitrit, Dieter Grimm, and Wade Wright.

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