12 - Distributional Analysis as an Alternative to Proportionality Analysis in Judicial Decision-Making

Summary

The chapter discusses distributional analysis as a method of legal analysis interested in understanding the consequences of rules. While recognizing that this method shares this goal with proportionality analysis, the author intimately discards a reconciliation of both based on their different relationship to a theory of democracy. The author argues that proportionality analysis is wed to a vision of judges as restrained by the commands of legislators (or constitutional lawmakers), while distributional analysis sees judges as political actors entrusted with realizing the goal of redistribution. The case of gender mainstreaming is used to illustrate that arguing in favor of the use of distributional analysis does not mean forcing judges into continually adopting structural injunctions, nor provokes such levels of polarization that the sought-after redistribution is sabotaged by increased levels of countermobilization or backlash.