The European Pasteurization of French Law

In a series of stunning decisions handed down in the last few years, the European Court of Human Rights (ECHR) has condemned the decisionmaking procedures traditionally used by the French Supreme Courts (i.e., the Cour de cassation and the Conseil d\u27Etat). This Article traces and critiques this developing “fair trial” jurisprudence, which has also resulted in the condemnation of the supreme courts of Belgium, Portugal, and the Netherlands, whose decisionmaking procedures were all patterned on the French civil law model. Finally, the Article examines the dramatic and schismatic French responses that have ensued. This Article offers a case study at the intersection of European law, comparative law and judicial theory. It begins by describing—and distinguishing between—the interpretive practices and judicial theories that characterize the legal systems of France, the United States, and the European Union. It then analyzes the complex, multifaceted, and ongoing negotiation between these systems\u27 divergent understandings of proper judicial practice. Professor Lasser concludes that the largely misguided interchange between the French supreme courts and the ECHR may well have resulted in pasteurizing the French civil law procedural model into bland nonexistence. The traditionally republican and institutional modes of French judicial decisionmaking have been forced to take on some of the more democratic and argumentative features that characterize ECHR and, especially, American judicial decisionmaking. Unfortunately, these reforms may grant a new argumentative prominence—and thus normative dominance—to the French judiciary (precisely what the traditional French system was designed to avoid), without, however, counterbalancing this new judicial power with sufficiently effective individual, public, and argumentative judicial accountability. Whether these reforms mark the beginning of the end or the beginning of a creative new beginning of the French civil law model of judicial decisionmaking remains to be determined

Lit. Theory Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse

The formalism/policy dichotomy has structured American jurisprudential analyses of judicial decisionmaking for most of the twentieth century. In this Article, Professor Lasser analyzes and compares American multi-part judicial tests and French civil judicial discourse to demonstrate that the dichotomy reflects and informs the ways in which judicial decisions are written. Drawing on the works of Roman Jakobson, Roland Barthes, and Paul de Man, he constructs a literary methodology to analyze American and French judicial discourse. Professor Lasser contends that the formalism/policy dichotomy is part of a larger process by which the American and French judicial systems justify how they produce judicial decisions. He argues that both American and French judicial decisions construct and use the dichotomy in order to make similar ontological claims about the nature of adjudication—namely, that adjudication is both inherently stable and socially responsive

Judicial (Self-)Portraits: Judicial Discourse in the French Legal System

The French legal system, according to its official pronouncements, functions on a rigid conception of the interpretive and creative role of the civil, private law judge. This conception may be thought of as an official portrait : It is an image or representation of the judge and of the nature of the judicial role. The official portrait, which represents an interpretive ideology that posits a perfectly grammatical mode of reading the legal code, has been the source of much confusion, especially to common lawyers. This portrait\u27s predominance in the French legal system, and its effect on French judicial practice, has never been properly understood, even by the finest American analysis of the French legal system: John Dawson\u27s The Oracles of the Law. By demonstrating that the official portrait is but the most visible of several conceptions of the judicial role currently operating in the French legal system, this Article seeks to correct the skewed common law accounts of how the French judicial system actually functions. In the process, this Article exposes an entire sphere of French judicial discourse that is kept largely hidden from the general public, and whose very existence requires novel analysis. This Article constructs an unofficial portrait of the French civil judge, based on the conceptions of the judicial role prevailing in this hidden discursive sphere. Finally, it examines the effects that the coexistence of the official and unofficial portraits produce on French judicial interpretation, discourse, and rhetoric