European Journal of Law Reform

Article

The Margin of Appreciation in the ECtHR’s Case Law

A European Version of the Levels of Scrutiny Doctrine?

Keywords ECHR, judicial deference, levels of scrutiny, margin of appreciation, U.S. federalism
Authors Koen Lemmens
Author's information

326340 Koen Lemmens
Associate professor of Public Law at KU Leuven (Belgium) and press law VU Brussels (Belgium). The author thanks Toon Agten for his comments and Camille Van Peteghem for her assistance during research. The usual disclaimer applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
  • Abstract

      Although the American doctrine of levels of scrutiny and the European concept of margin of appreciation are regularly compared as typical instances of deferential judicial decision-making, this article argues that owing to the institutional setting in which they operate, the differences between the two are notable. It is also argued that the social consequences of the application of the two concepts may even be radically opposed.

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