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Expression Here and Abroad: A Comparative Analysis of the U.S. Supreme Court's and the European Court of Human Rights' Commercial Speech Doctrines
Unformatted Document Text:  ICA 1-10808 21 Part III: What Can the United States Learn From the European Commercial Speech Doctrine? Structural Differences Impact Tests’ Application There are some fundamental differences in the structures of the U.S. Supreme Court and the European Court of Human Rights that contribute to the divisions in the commercial speech doctrines developed by the two judicial bodies. Justices on the Supreme Court follow the principle of stare decisis in the formulation of decisions and when crafting case law. This principle has quite possibly made it difficult for many members of the Supreme Court to openly challenge or to even explore changing the Central Hudson test. The European Court, in principle, follows the continental practice of deciding only the case currently before it, without attaching much weight to precedent. In practice, though, the language in the European Court’s decisions says otherwise. In the Article 10 cases reviewed herein, prior cases were consistently referred to as benchmarks. Respondents, when arguing that Article 10 did not apply to commercial expression, were told repeatedly that the Court had already ruled that it did apply and were then given a list of citations demonstrating this fact. Perhaps it is the lack of a formal stare decisis principle that gives the European Court more freedom to revisit their previous rulings in the commercial expression area, even to the point of stating that perhaps previously they had not been crystal clear regarding the inclusion of expression of a commercial nature under Article 10 protection. 156 Another fundamental structural difference is the makeup of each judicial body. Supreme Court justices are appointed for life terms by the president with the approval of the Congress. Thus, the Court reflects different ideological characteristics, such as a conservative or liberal position on issues, depending upon its current member makeup. Judges in the European Court are elected to six-year terms by the Parliamentary Assembly of the Council of Europe. 157 The elections and terms are scheduled such that

Authors: Hollerbach, Karie.
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ICA 1-10808 21
Part III: What Can the United States Learn From the European
Commercial Speech Doctrine?
Structural Differences Impact Tests’ Application
There are some fundamental differences in the structures of the U.S. Supreme
Court and the European Court of Human Rights that contribute to the divisions in the
commercial speech doctrines developed by the two judicial bodies. Justices on the
Supreme Court follow the principle of stare decisis in the formulation of decisions and
when crafting case law. This principle has quite possibly made it difficult for many
members of the Supreme Court to openly challenge or to even explore changing the
Central Hudson test. The European Court, in principle, follows the continental practice
of deciding only the case currently before it, without attaching much weight to precedent.
In practice, though, the language in the European Court’s decisions says otherwise. In the
Article 10 cases reviewed herein, prior cases were consistently referred to as benchmarks.
Respondents, when arguing that Article 10 did not apply to commercial expression, were
told repeatedly that the Court had already ruled that it did apply and were then given a list
of citations demonstrating this fact. Perhaps it is the lack of a formal stare decisis
principle that gives the European Court more freedom to revisit their previous rulings in
the commercial expression area, even to the point of stating that perhaps previously they
had not been crystal clear regarding the inclusion of expression of a commercial nature
under Article 10 protection.
156
Another fundamental structural difference is the makeup of each judicial body.
Supreme Court justices are appointed for life terms by the president with the approval of
the Congress. Thus, the Court reflects different ideological characteristics, such as a
conservative or liberal position on issues, depending upon its current member makeup.
Judges in the European Court are elected to six-year terms by the Parliamentary
Assembly of the Council of Europe.
157
The elections and terms are scheduled such that


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