Proportionality Review in Pennsylvania Courts

92 Pennsylvania Bar Quarterly (2021 Forthcoming)

Penn State Law Research Paper No. 15-2021

23 Pages Posted: 14 May 2021 Last revised: 24 Aug 2021

See all articles by Jud Mathews

Jud Mathews

Penn State Law

Stephen F. Ross

The Pennsylvania State University (University Park) – Penn State Law

Date Written: May 14, 2021

Abstract

Courts around the world protect constitutional rights by conducting a form of judicial review known as proportionality review. Judges performing proportionality review run challenged government action through a series of legal tests to determine whether the government has overreached. The U.S. Supreme Court’s “Lochner-era” jurisprudence was a form of rights review that resembled proportionality, but today that Court favors a tiered approach to rights, applying strict scrutiny, rational basis review, and intermediate scrutiny to different claims. Pennsylvania’s Supreme Court, like many other state supreme courts, has to a significant extent patterned its approach to rights after the federal jurisprudence, notwithstanding important institutional differences between constitutional review at the state and federal levels. We argue that Pennsylvania has much to gain from expanding and regularizing the use of proportionality review in constitutional rights claims.

Keywords: judicial review, constitutional law, state constitutional law, proportionality, constitutional rights

Suggested Citation

Mathews, Jud and Ross, Stephen F., Proportionality Review in Pennsylvania Courts (May 14, 2021). 92 Pennsylvania Bar Quarterly (2021 Forthcoming), Penn State Law Research Paper No. 15-2021, Available at SSRN: https://ssrn.com/abstract=3845778

Jud Mathews (Contact Author)

Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://https://pennstatelaw.psu.edu/faculty/mathews

Stephen F. Ross

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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