Where does proportionality collide?

The limit on what a party may demand from an opponent in pretrial discovery. The 2015 amendment to Rule 26(b)(1) moved proportionality into the definition of the scope of discovery: a party may obtain non-privileged matter that is relevant to a claim or defence and proportional to the needs of the case, judged by six listed factors. The factors had been in the rule since 1983 as a limit the court could impose; the amendment made them part of what the requesting party must satisfy and deleted the phrase "reasonably calculated to lead to the discovery of admissible evidence". Allman's 2016 review of the early case law found courts applying the factors as a genuine constraint rather than a formality. Proportionality here is a cost–benefit judgement by a judge about a request for information, and it is the only meaning on this map in which the thing weighed is the burden of producing evidence.[1][2]

Unit

A discovery request measured against the needs of the case

Recovery means

Not applicable, the outcome is an order compelling, limiting, or denying production

Measured by

A court's weighing of the six Rule 26(b)(1) factors

A structured test for whether a government measure that limits a right is justified. The Supreme Court of Canada set it out in Oakes in 1986: the objective must be pressing and substantial, the measure rationally connected to it, the impairment of the right minimal, and the harm to the right not disproportionate to the benefit. Alexy gave the theory in 1985, translated in 2002: rights are principles to be optimised, and the final balancing step follows a law of weighing in which the greater the interference with one principle, the greater the importance of satisfying the other must be. Barak's 2012 treatise and Stone Sweet and Mathews's 2008 survey documented the test's spread from German administrative law to most constitutional courts outside the United States. Proportionality here is a doctrine of judicial review with a fixed sequence of steps, and its object is a law or executive act, not a request or an attack.[3][4][5][6]

Unit

A state measure limiting a constitutional right

Recovery means

Not applicable, the outcome is validity or invalidity of the measure

Measured by

A court's findings at each stage: legitimate aim, suitability, necessity, balancing

The rule that an attack on a military objective is unlawful if the expected incidental harm to civilians would be excessive in relation to the concrete and direct military advantage anticipated. Article 51(5)(b) of Additional Protocol I of 1977 codified it for the first time, and the rule is treated as customary law binding on states that have not ratified the Protocol. Gardam's 1993 article traced the concept's two lives: the ad bellum proportionality of a state's resort to force against the wrong suffered, and the in bello proportionality of a particular attack, and argued that the second had been applied with less rigour than the first. Proportionality here is a judgement made by a commander before an attack on the basis of what was reasonably expected, not what occurred, and the comparison is between civilian harm and military advantage, two quantities with no common unit.[7][8]

Unit

An individual attack's expected civilian harm against its anticipated military advantage

Recovery means

Not applicable, the outcome is the lawfulness of the attack and individual criminal responsibility

Measured by

The reasonable commander's assessment on the information available at the time

The principle that the severity of a punishment should match the seriousness of the crime. Weems held in 1910 that a sentence of fifteen years in chains for falsifying a public record violated the prohibition on cruel and unusual punishment because it was disproportionate to the offence, and the Eighth Amendment has carried a proportionality principle since. Von Hirsch gave the philosophical account in 1992: punishment conveys censure, censure must be proportioned to blameworthiness, and the resulting requirements of ordinal proportionality (like cases alike, more serious crimes punished more) are stricter than the cardinal anchoring of the scale as a whole, which the theory leaves largely open. Proportionality here is a relation between two ordered scales, crime seriousness and penalty severity, and the distinctive feature is that the ordinal ranking is the strong constraint while the absolute level is not.[9][10]

Unit

A sentence measured against the seriousness of the offence

Recovery means

Not applicable, the outcome is a sentence within or outside the permissible range

Measured by

Ordinal comparison across offences; constitutional review of gross disproportion

A constant ratio between two quantities across the range of a third. Cox's 1972 model assumes that the hazard of an event for one individual is a fixed multiple of the hazard for another at every point in time, so that covariate effects can be estimated without specifying the baseline hazard; the assumption is what the word "proportional" carries, and testing it is part of any use of the model. In mathematics education the word names a competence: Inhelder and Piaget placed the understanding of proportion at the formal-operational stage in 1958, and Lamon showed in 1993 that children's success on ratio problems depends on the semantic type of the problem and on whether they reason with a multiplicative relation or fall back on additive comparison. Proportionality here is a formal relation, y = kx, and neither use involves weighing competing interests.[11][12][13]

Unit

A ratio held constant across time or across problem instances

Recovery means

Not applicable

Measured by

Tests of the proportional-hazards assumption; children's strategies on ratio and proportion tasks

The correspondence between the share of votes a party wins and the share of seats it receives. Gallagher proposed in 1991 a least-squares index (the square root of half the sum of squared vote–seat differences) that weights large deviations more heavily than the older Loosemore–Hanby index, and it became the standard measure. Lijphart's 1994 comparison of twenty-seven democracies traced disproportionality to electoral formula, district magnitude, and legal thresholds, with magnitude the strongest single influence. Proportionality here is a property of an electoral outcome, quantified on a scale from zero upward, and the only meaning on this map that is routinely reported as a number.[14][15]

Unit

The gap between parties' vote shares and seat shares in an election

Recovery means

Not applicable

Measured by

The Gallagher index; district magnitude and effective threshold as predictors

In public health ethics, proportionality refers to the requirement that the expected public health benefit of a measure outweigh the infringement of liberties and other values it involves. This meaning comes from Childress (2002) in Journal of Law, Medicine & Ethics.[16]

Unit

Recovery means

Measured by