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The Costs and Consequences of Incorrect Citations: European Law in the U.S. Supreme Court

78 Pages Posted: 27 May 2017  

Andrea Pin

University of Padua - Department of Public Law

Date Written: May 25, 2016

Abstract

Building on the controversy over foreign citations in domestic courts, this article reflects on the U.S. Supreme Court's practice of quoting EU law and the European Court of Human Rights' case law. It offers a detailed examination of how the U.S. Supreme Court has used European sources and shifts the debate over whether it should use them, by explaining a different way in which the court could exploit them. The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges' reasoning: laws targeting homosexual conduct; federalism; and the death penalty. It singles out the relevant passages of each U.S. Supreme Court decision, explores the European sources that it points to, and evaluates how accurately the court depicts them. It turns out that all the references that the U.S. Supreme Court has made to European jurisprudence are either mistaken or misleading. The article argues that the foreign jurisprudence should not have been ignored, but rather should have been used better, investigated deeper, and utilized as an informational tool to aid the court's reflections than merely to bolster its already decided interpretation of the U.S. Constitution. The basic requirement for using foreign laws correctly is an adequate understanding of what such laws mean in the legal order from which they come and how they resonate with the context in which they are imported.

Keywords: Foreign Citations, U.S. Supreme Court, EU Law, ECHR Case Law

JEL Classification: K33

Suggested Citation

Pin, Andrea, The Costs and Consequences of Incorrect Citations: European Law in the U.S. Supreme Court (May 25, 2016). Brooklyn Journal of International Law, Vol. 42, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2974433

Andrea Pin (Contact Author)

University of Padua - Department of Public Law ( email )

via Anghinoni, 3
via VIII Febbraio, 2
Padova, 35121
Italy

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