%0 Journal Article
%T When good is not good enough:  A comparative analysis of underinclusiveness and the principle of coherence under proportionality review
%A Hendrik M Wendland
%J Maastricht Journal of European and Comparative Law
%@ 2399-5548
%D 2018
%R 10.1177/1023263X18769500
%X Proportionality review has long been a tool of the ECJ to scrutinize national measures that impede the realization of the Internal Market. More recently, the ECJ has required those measures to be ¡®consistent and systematic¡¯. This paper shows the historical development of the ECJ¡¯s jurisprudence and contrasts it with the approach taken by US Courts reviewing similar issues. Under consideration of the comparative findings, different framings for arguments of underinclusiveness and coherence under a general concept of proportionality review are derived: the arguments can determine not only the efficacy or suitability of a measure, but also play a role when analyzing proportionality stricto sensu. On the other hand, it is argued that the sub-test of necessity is the wrong location for asserting those considerations. Most importantly, the ECJ ¨C limited by its institutional design ¨C uses the principle of coherence as a factor when interpreting the national law for its proper purpose
%K Principle of coherence
%K proportionality review
%K underinclusiveness
%K strict scrutiny
%K pretext analysis
%K Trump¡¯s ¡®Muslim ban¡¯
%U https://journals.sagepub.com/doi/full/10.1177/1023263X18769500