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Reframing The Proportionality Principle, Michael A. Newton
Reframing The Proportionality Principle, Michael A. Newton
Vanderbilt Law School Faculty Publications
Proportionality functions as oneof the most important legal constraints applicable to the conduct of hostilities. In that context, this short essay discusses the commonly encountered misapplications of Cicero's classic sentiment that "salus populwe supremus est lexl . . . silent enim leges inter armes." Rather than serving as a necessary basis for a positive articulation of lawful force as an exception to the norm, jus in bello proportionality delineates the outer boundaries of the commander's appropriate discretion. The mere invocation of jus in bello proportionality cannot become an effective extension of asymmetric combat power by artificially crippling combatant capabilities. This …
Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin
Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin
Vanderbilt Law School Faculty Publications
In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this …
Let's Not Bury Terry: A Call For Rejuvenation Of The Proportionality Principle, Christopher Slobogin
Let's Not Bury Terry: A Call For Rejuvenation Of The Proportionality Principle, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Thirty years ago, "Terry v. Ohio" established a conceptual framework for the Fourth Amendment that makes more sense than any alternative the courts or commentators have come up with since. That frame-work, which I call the proportionality principle, is very simple: a search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action. As the Court put it, "there is 'no ready test for determining reasonableness other than by balancing the need to search or seize against the invasion which the search or seizure entails.' In "Terry" …