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Proportionality and Facts in Constitutional Adjudication: Hart Studies in Constitutional Theory

Autor Anne Carter
en Limba Engleză Paperback – 28 iun 2023
This book considers the relationship between proportionality and facts in constitutional adjudication. Analysing where facts arise within each of the three stages of the structured proportionality test - suitability, necessity, and balancing - it considers the nature of these 'facts' vis-à-vis the facts that arise in the course of ordinary litigation. The book's central focus is on how proportionality has been applied by courts in practice, and it draws on the comparative experience of four jurisdictions across a range of legal systems. The central case study of the book is Australia, where the embryonic and contested nature of proportionality means it provides an illuminating study of how facts can inform the framing of constitutional tests. The rich proportionality jurisprudence from Germany, Canada, and South Africa is used to contextualise the approach of the High Court of Australia and to identify future directions for proportionality in Australia, at a time when the doctrine is in its formative stages.The book has three broad aims:First, it considers the role of facts within proportionality reasoning. Second, it offers procedural insights into fact-finding in constitutional litigation. Third, the book's analysis of the dynamic Australian case-law on proportionality means it also serves to clarify the nature and status of proportionality in Australia at a critical moment. Since the 2015 decision of McCloy v New South Wales, where four justices supported the introduction of a structured three-part test of proportionality, the Court has continued to disagree about the utility of such a test. These developments mean that this book, with its doctrinal and comparative approach, is particularly timely.
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Specificații

ISBN-13: 9781509955497
ISBN-10: 1509955496
Pagini: 272
Dimensiuni: 156 x 234 x 25 mm
Greutate: 0.32 kg
Editura: Bloomsbury Publishing
Colecția Hart Publishing
Seria Hart Studies in Constitutional Theory

Locul publicării:London, United Kingdom

Caracteristici

Uses the rich proportionality jurisprudence from Germany, Canada and South Africa to contextualise the approach of the Australian High Court

Notă biografică

Anne Carter is Senior Lecturer at Deakin Law School, Australia.

Cuprins

1. Introduction I. Proportionality and FactsA. What is Proportionality? B. Proportionality in Australia C. Why Facts Matter II. The Aim and Scope of this Book III. Methodology and Comparative Context A. Choice of Comparators B. The Australian Constitutional Framework C. The Comparative Context IV. The Structure of the Book 2. The Fact-Dependent Nature of Proportionality I. Proportionality: A Structured Approach A. Legitimate Aim B. Suitability C. Necessity D. Balancing II. The Nature of Proportionality Reasoning A. Types of Decisions Involved in Assessing Proportionality B. Factual Elements in Proportionality III. Conclusion: Proportionality and Facts 3. Understanding Facts I. What are Facts? II. Classifying Facts A. Kenneth Culp Davis and the Distinction between Adjudicative Facts and Legislative Facts B. 'Legislative Facts' and their Alternatives C. Evaluating the Categories III. Facts and ProportionalityA. The Suitability Stage: Purpose and Rational ConnectionB. The Necessity Stage: Predictions and Counterfactuals C. Balancing and Facts IV. Conclusion 4. Proportionality and Facts in Comparative Perspective I. Proportionality Compared II. Recognising Facts? A. The Relevance of Facts B. Differentiating Facts: The Various Stages of Proportionality Analysis III. Finding Facts? A. Informing the Court B. Deference to the Legislature IV. Conclusion 5. Proportionality in Australian Constitutional Law I. The Australian Adoption of Proportionality II. The Development of ProportionalityA. The Development of Different Tests B. 'Appropriate and Adapted' versus 'Proportionality'? C. McCloy and the Advent of Structured Proportionality III. Evaluating Proportionality A. Balancing B. Levels of Scrutiny IV. Conclusion 6. The Factual Basis of Proportionality in Australia I. Recognising Facts II. Facts and the Framing of Constitutional Tests A. Reasonably Capable of Being Considered Appropriate and Adapted B. Reasonably Appropriate and Adapted C. Reasonably NecessaryD. Structured Proportionality III. The Correlation between Proportionality and Facts? IV. Conclusion 7. Procedural Implications I. The High Court's Existing Approach: Limitations and Unresolved Issues A. High Court Procedures and their Limitations B. Unresolved Issues II. Recognising Facts: Implications for Procedure A. The Suitability Stage B. The Necessity and Balancing Stages III. Changing Facts and the Problem of Precedent IV. Conclusion 8. Conclusion: Why Facts Matter

Recenzii

Dr Anne Carter [has] provided ... valuable contributions to the literature considering the role of structured proportionality in the Australian constitutional context.
Dr Carter's book is an invaluable tool for constitutional litigators.