Why National Courts Resist Empowering Themselves Via European Law

Political Science Reading Group with Tommaso Pavone

Judicial empowerment is often cited as a driver of transnational governance, particularly in the European Union (EU). In this view, lower national courts enthusiastically began referring cases to the European Court of Justice (ECJ) to acquire new powers of judicial review. Revisiting this argument, I argue that path-dependent, everyday practices within domestic judiciaries stemming from insufficient EU legal training, workload pressures, and cultural aversions to judicial review can resist Europeanization even when it would lead to empowerment. First, insufficient EU legal training breeds insecurity when dealing with a little-known, complex legal field, alongside a fear of making a bad impression when dialoguing with the ECJ. Second, workload pressures discipline judges to focus on providing quick, concrete answers to the piles of files before them today rather than embracing the prospect of a law-making dialogue with the ECJ tomorrow. Finally, cultural aversions to "foreign" sources of law, combined with an oftentimes hierarchical judicial culture, dissuade lower court judges from rethinking themselves as European judges of first instance. The argument is evaluated via a critical case study of judicial practice in Italy, France, and Germany, including nearly two years of field research and over 300 interviews with judges, lawyers, and law professors.

Refer to the paper 'Revisiting Judicial Empowerment in the European Union:Limits of Empowerment, Logics of Resistance' as a basis for the talk.

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The political science reading group meets on a regular basis to discuss papers on judicial politics or international courts and tribunals.

The reading group is managed by PluriCourts, but open to everyone that is interested.

Tags: CJEU
Published Dec. 6, 2017 2:05 PM - Last modified Jan. 12, 2018 2:43 PM