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The Limits of Legal Reasoning and the European Court of Justice
The European Court of Justice is widely acknowledged to have played a fundamental role in developing the constitutional law of the EU, having been the first to establish such key doctrines as direct effect, supremacy and parallelism in external relations. Traditionally, EU scholarship has praised the role of the ECJ, with more critical perspectives being given little voice in mainstream EU studies. From the standpoint of legal reasoning, Gerard Conway offers the first sustained critical assessment of how the ECJ engages in its function and offers a new argument as to how it should engage in legal reasoning. He also explains how different approaches to legal reasoning can fundamentally change the outcome of case law and how the constitutional values of the EU justify a different approach to the dominant method of the ECJ.
eBook
Judicial Behavior under Political Constraints: Evidence from the European Court of Justice
The actual impact of judicial decisions often depends on the behavior of executive and legislative bodies that implement the rulings. Consequently, when a court hears a case involving the interests of those controlling the executive and legislative institutions, those interests can threaten to obstruct the court's intended outcome. In this paper, we evaluate whether and to what extent such constraints shape judicial rulings. Specifically, we examine how threats of noncompliance and legislative override influence decisions by the European Court of Justice (ECJ). Based on a statistical analysis of a novel dataset of ECJ rulings, we find that the preferences of member-state governments—whose interests are central to threats of noncompliance and override—have a systematic and substantively important impact on ECJ decisions.
Journal Article
The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform
We challenge the prevalent claim that courts can only influence policy by adjudicating disputes. Instead, we theorize the shadow effect of courts: policy makers preemptively altering policies in anticipation of possible judicial review. While American studies imply that preemptive reforms hinge on litigious interest groups pressuring policy makers who support judicial review, we advance a comparative theory that flips these presumptions. In less litigious and more hostile political contexts, policy makers may instead weaponize preemptive reforms to preclude bureaucratic conflicts from triggering judicial oversight and starve courts of the cases they need to build their authority. By allowing some preemptive judicial influence to resist direct judicial interference, recalcitrant policy makers demonstrate that shadow effects are not an unqualified good for courts. We illustrate our theory by tracing how a major welfare reform in Norway was triggered by a conflict within its Ministry of Labor and a government resistance campaign targeting a little-known international court.
Journal Article
Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting
This article analyzes the social potential of regional integration processes by using the example of European integration. Recent case law from the European Court of Justice has led some observers to argue that judicial decisions increasingly provide European politics with a “Polanyian” drive. We test this claim by distinguishing three dimensions to European economic and social integration: market-restricting integration, market-enforcing integration, and the creation of a European area of nondiscrimination. We also identify two forms of integration that have different speeds, scopes, and potentials: political integration and judicial integration. The evidence shows that the EU has come closer to Hayek's vision of “interstate federalism” than is usually warranted because market-enforcing integration and European nondiscrimination policies have asymmetrically profited from “integration through law.” The opportunities for international courts to push ahead market-enforcing integration increase as the participants of regional integration processes become more diverse. In such “Hayekian” constellations, individual rights are increasingly relocated to the central level, at the cost of subordinating the decentralized capacity for solidarity and interpersonal redistribution.
Journal Article
The Impartiality of International Judges: Evidence from the European Court of Human Rights
Can international judges be relied upon to resolve disputes impartially? If not, what are the sources of their biases? Answers to these questions are critically important for the functioning of an emerging international judiciary, yet we know remarkably little about international judicial behavior. An analysis of a new dataset of dissents in the European Court of Human Rights (ECtHR) yields a mixed set of answers. On the bright side, there is no evidence that judges systematically employ cultural or geopolitical biases in their rulings. There is some evidence that career insecurities make judges more likely to favor their national government when it is a party to a dispute. Most strongly, the evidence suggests that international judges are policy seekers. Judges vary in their inclination to defer to member states in the implementation of human rights. Moreover, judges from former socialist countries are more likely to find violations against their own government and against other former socialist governments, suggesting that they are motivated by rectifying a particular set of injustices. I conclude that the overall picture is mostly positive for the possibility of impartial review of government behavior by judges on an international court. Like judges on domestic review courts, ECtHR judges are politically motivated actors in the sense that they have policy preferences on how to best apply abstract human rights in concrete cases, not in the sense that they are using their judicial power to settle geopolitical scores.
Journal Article
The concept of ‘internal judicial independence’ in the case law of the European Court of Human Rights
Internal judicial independence as a new element of the case law of the Strasbourg Court on Article 6 of the European Convention on Human Rights – The Court has only found violations of internal judicial independence in cases against former communist countries – Relevance of the case law for other member states of the Council of Europe – Internal judicial independence as part of the requirement of an impartial tribunal? – Importance of the independence of the individual judge
Journal Article
Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights
Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges' activities to those of other dispute resolution providers. From 1925 until the mid-1980s, obligations to arbitrate rested on consent. Thereafter, the U.S. Supreme Court shifted course and enforced court and class action waivers mandated when consumers purchased goods and employees applied for jobs. To explain the legitimacy of precluding court access for federal and state claims, the Court developed new rationales—that arbitration had procedural advantages over adjudication, and that arbitration was an effective enforcement mechanism to \"vindicate\" public rights. The result has been the mass production of arbitration clauses without a mass of arbitrations. Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so—rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights. The diffusion of disputes to a range of private, unknowable alternative adjudicators also violates the constitutional protections accorded to the public—endowed with the right to observe state-empowered decision makers as they impose binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The cumulative effect of the Supreme Court's jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.
Journal Article
The economic importance of judicial institutions, their performance and the proper way to measure them
In the present paper we contribute to the previous literature on de facto enforcing mechanisms, by focusing on the role of judicial institutions and their performance and measurement. We propose both theoretical and empirical evidence supporting the necessity of a clear distinction between two measures of judicial performance, efficiency and efficacy, which have often been confused in previous literature. Not only might economic actors not be affected to the same extent by these two indicators, but we show that these measures do not even correlate significantly with each other. We also bring evidence against the alleged trade-off between the quality of justice and judicial performance in its quantitative dimension, showing that this relationship is much more complicated than is claimed by some legal scholars.
Journal Article