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Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism after Medellín

23 Pages Posted: 17 Nov 2011 Last revised: 20 Feb 2015

Johanna Kalb

Loyola University New Orleans College of Law; New York University (NYU) - Brennan Center for Justice

Date Written: September 26, 2011

Abstract

Subnational implementation of human rights law has been the subject of increasing interest among scholars and litigators in recent years, building on the call for independent state constitutionalism and the rise of New Federalism. The Supreme Court's decision in Medellín v. Texas may have the effect of limiting the space for this kind of independent state level initiative. This Essay examines the conditions under which state courts have engaged with the international human rights treaties the United States has signed or ratified, and considers whether and how these treaties will be affected by the Medellín decision. I conclude that because state courts have been more receptive to arguments based on treaties as non-binding persuasive authority, even the broadest reading of the decision will not end this type of human rights advocacy.

Keywords: State constitutionalism, federalism, treaty implementation, human rights

Suggested Citation

Kalb, Johanna, Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism after Medellín (September 26, 2011). 115 Penn State Law Review 1051 (2011); Loyola University New Orleans College of Law Research Paper No. 2011-04. Available at SSRN: https://ssrn.com/abstract=1961102 or http://dx.doi.org/10.2139/ssrn.1961102

Johanna Kalb (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

New York University (NYU) - Brennan Center for Justice ( email )

161 Avenue of the Americas
12th Floor
New York, NY 10013
United States

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