Recent U.S. and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis

Authors

Nadine Strossen

Abstract

Recent U.S. Supreme Court decisions have eroded significantly the judicial protection of individual rights, not only in terms of their substantive holdings, but also in terms of the weakened judicial review standards they enunciate. By contrast, the tribunals that enforce the European Convention on Human Rights have displayed the opposite tendencies: toward increased protection of individual rights, not only in substantive terms, but also in terms of heightened judicial scrutiny. The U.S. long has recognized that international legal standards may be incorporated into domestic law in order to enhance the protection accorded to individual rights. Accordingly, Professor Strossen proposes that the legal process standards developed under the European Convention should guide U.S. courts in interpreting domestic legal standards. This suggested domestic role for international legal principles is at once limited enough to be noncontroversial and significant enough to have a positive effect on American individual rights jurisprudence.

Recommended Citation

Nadine Strossen, Recent U.S. and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 Hastings L.J. 805 (1990).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol41/iss4/2