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    Incommensurability, Proportionality, and Rational Legal Decision-Making
    Law and Ethics of Human Rights 4 (2): 178-228. 2010.
    Courts frequently engage in the weighing of competing values; perhaps most obviously, such balancing constitutes an integral aspect of proportionality analysis in many states’ constitutional law. However, such balancing raises a difficult theoretical question: What does it mean that one value “outweighs” another in any particular case? If the values at issue are incommensurable — as they often will be — such balancing may appear to break down. As Justice Scalia has stated, balancing in the prese…Read more