2023
DOI: 10.1177/1023263x241248520
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Fundamental rights and the federal equilibrium: Comparing the doctrines of incorporation in the USA and the EU

Orlando Scarcello

Abstract: I analyse the process of incorporation of ‘federal’ rights in the United States and in the European Union. Both are forms of ‘selective incorporation’, but in a markedly different manner: in the US the selection depends on the type of right (rooted in the tradition of the nation and implicit in the concept of ordered liberty); in the EU it depends on the type of State action, namely whether the Member State is acting within the scope of EU law. After reconstructing the evolution of the two doctrines, I argue t… Show more

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