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Judicial Deliberations

Judicial Deliberations A Comparative Analysis of Transparency and Legitimacy

  • Author:
  • Publisher: Oxford University Press
  • ISBN: 9780199575169
  • Published In: July 2009
  • Format: Paperback , 400 pages
  • Jurisdiction: U.K. ? Disclaimer:
    Countri(es) stated herein are used as reference only

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    Offers a major comparative study of the judicial reasoning and interpretive processes of civil and common law systems and the European Court of Justice
    Demonstrates how the ECJ generates legitimacy and transparency through a rigorous argumentative approach
    Examines judicial argumentation of the US Supreme Court and the French Cour de cassation
    Judicial Deliberations compares how and why the European Court of Justice, the French Cour de cassation and the US Supreme Court offer different approaches for generating judicial accountability and control, judicial debate and deliberation, and ultimately judicial legitimacy.

    Examining the judicial argumentation of the United States Supreme Court and of the French Cour de cassation, the book first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial decision-making. It then uses this analysis to offer the first detailed comparative examination of the interpretive practice of the European Court of Justice.

    Lasser demonstrates that the French judicial system rests on a particularly unified institutional and ideological framework founded on explicitly republican notions of meritocracy and managerial expertise. Law-making per se may be limited to the legislature; but significant judicial normative administration is entrusted to State selected, trained, and sanctioned elites who are policed internally through hierarchical institutional structures. The American judicial system, by contrast, deploys a more participatory and democratic approach that reflects a more populist vision. Shunning the unifying, controlling, and hierarchical French structures, the American judicial system instead generates its legitimacy primarily by argumentative means. American judges engage in extensive debates that subject them to public scrutiny and control. The ECJ hovers delicately between the institutional/argumentative and republican/democratic extremes. On the one hand, the ECJ reproduces the hierarchical French discursive structure on which it was originally patterned. On the other, it transposes this structure into a transnational context of fractured political and legal assumptions. This drives the ECJ towards generating legitimacy by adopting a somewhat more transparent argumentative approach.

    Readership: Scholars and students of comparative law, political science, and legal theory, the judiciary.


  • 1. Introduction
    PART I: The Three Courts - Raw Analysis
    2. The French Bifurcation
    3. The American Unification
    4. The European Union: Discursive Bifurcation Revisited
    PART II: Bifurcation
    5. Similarity and Difference
    6. France: How is the discursive bifurcation maintained?
    7. The ECJ: The French bifurcation reworked
    PART III: Comparison
    8. The Sliding Scales
    9. Apples and Oranges
    10. On Judicial Transparency, Control, and Accountability
    11. On Judicial Debate, Deliberation, and Legitimacy
    12. Concluding Postscript
    Bibliography
  • Mitchel de S.-O.-l'E. Lasser, Jack G. Clarke Professor of Law at Cornell University Law School

    Mitchel Lasser is the Jack G. Clarke Professor of Law and Director of Graduate Studies at Cornell Law School and co-directs the Cornell Summer Institute of International and Comparative Law in Paris. He teaches and writes in the areas of comparative law, law of the European Union, comparative constitutional law, and judicial process. Before joining the Cornell faculty in 2004, Professor Lasser was the Samuel D. Thurman Professor of Law at the University of Utah's S.J. Quinney College of Law. He received a B.A. from Yale College (1986), a J.D. from Harvard Law School (1989), an M.A. in French literature (1990) and a Ph.D. in comparative literature (1995) from Yale University. He served as a Fulbright Scholar in France from 1993 to 1994, where he researched the French civil judicial system. While a doctoral student at Yale, he held a Whiting fellowship and an Enders fellowship.

    Professor Lasser has been a Visiting Professor at the University of Paris-I (Panthéon-Sorbonne) in 2001, 2002 and 2005, the University of Lausanne in 2003 and 2004, the University of Geneva in 2004, and the NYU School of Law and the Institut d'Etudes Politiques de Paris (Sciences Po) in 2006. He held the Fulbright Distinguished Visiting Chair at the Law Department of the European University Institute in Florence, Italy in 2003 and was the Maurice R. Greenberg Visiting Professor at Yale Law School in 2007-2008. His articles have appeared in the Harvard Law Review, the Yale Law Journal, the Cornell Law Review, the American Journal of Comparative Law, the Archives de philosophie du droit, and the Revue trimestrielle de droit civil.

  • "the strength of this fascinating book is to provide novel comparative ways of analysing the ECJ's institutional and interpretative practice. Especially those researching in comparative law, European law and legal discourse theory will profit considerably from this innovative study" - Hannes Rosler (Max Planck Institute for Foreign Private law and Private International law, Hamburg) International and Comparative Law Quarterly

    "This volume can especially be recommended to jurists with a focus on Comparison and Public Law." - The European Legal Forum, Issue 3, 2009

    "Shattering prevailing stereotypes, this book revolutionizes the study of comparative law. It will serve as a basic reference point for future scholarship. " - Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

    "Judicial Deliberations is an ambitious, important, and innovative book, which adds greatly to our understanding of particular legal systems, of the ways in which differing configurations of discourse and institutional practice promote core rule-of-law values, and of comparative methodology itself. Beautifully written and wide-ranging in scope, it is likely to become a classic in the field." - Professor Amalia Kessler, Stanford Law School

    "Finally, must trials be opened up to discussions of non-legal factors and how far should one proceed down this path? In this event, a judge returns to a position of neutral arbiter, of a public debate discussion leader, but then the nature of trials will change. They then become a forum. Are we ready to accept this? Mitchel Lasser's book exploring the American, French and European traditions invites us to seek lines of progression that enrich these experiences while respecting the identities of each of these judicial cultures." - Guy Canivet, Justice of the French Constitutional Council and former President of the French Cour de cassation

    "[I]t seems very much in place to congratulate Professor Lasser on his excellent contribution to the discussion on judicial reasoning and legitimacy. His book constitutes a very important step for comparative analysis of judicial style at the national as well as at the supranational level." - Lech Garlicki, Judge of the European Court of Justice

    "Because he is bilingual, Lasser was able to analyse the two legal systems from the inside out. He shows how the American and French models each create their own idiosyncratic legitimacy. His analysis provides a healthy antidote to both the dominance of American legal thought and the tendency in Brussels and Strasbourg towards uniformisation." - Professor Nick Huls, Universities of Leiden and Rotterdam

    "Reading Professor Lasser's book, Judicial Deliberations is eye-opening. He elegantly presents the way in which different courts in different jurisdictions entertain different types of legal discourses, exposing how those discourses, different as they are, contribute, or indeed do not contribute, to a more transparent and more pluralistic legal culture. Lasser's realist approach is a refreshing disenchantment of judicial deliberations. The appeal of the book for European post-communist legal scholars possibly has to do with disappointment with the legal formalism and authoritarianism of socialist law, which are the elements of the traditional legal approach facing increasing difficulties responding to the emerging social needs associated with the market economy and European integration. Yet, the rabbit hole is much deeper then one usually anticipates." - Professor Sinisa Rodin, University of Zagreb

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