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Overseas Exchange of Human Rights Jurisprudence: The U.S. Supreme Court in the European Court of Human Rights

NCJ Number
International Criminal Justice Review Volume: 19 Issue: 3 Dated: September 2009 Pages: 287-307
Antenor Hallo de Wolf; Donald H. Wallace
Date Published
September 2009
21 pages
This article addresses the use by the European Court of Human Rights (ECtHR) of individual rights decisions by the United States Supreme Court.
An emerging global community of courts is developing. Constitutional courts are citing each other's precedents on a wide range of human rights-oriented issues, resulting in an emerging global jurisprudence in areas such as the death penalty and privacy rights. The ECtHR under its Convention examines complaints from individuals and states alleging violations of human rights. The use by the ECtHR of human rights jurisprudence from other jurisdictions is now relatively commonplace. This article discusses the use of the individual rights decisions of the U.S. Supreme Court by the ECtHR. The individual rights considered in these decisions have important substantive and procedural limitations for domestic criminal legal systems. With that said, a discussion of the historical and operational contexts for uses of international sources of law is provided, preceding an overview of the ECtHR's references to U.S. Supreme Court jurisprudence. In cases where the government lost, this review provides a detailed examination where the ECtHR refers to U.S. Supreme Court cases that have been narrowed by later U.S. Supreme Court decisions, and for that reason, uncited decisions. The ECtHR may use American case law to signal limitations of its own rulings, and the ECtHR references of U.S. Supreme Court cases can demonstrate the narrowness of the United States Constitutional protection. Table, notes, and references