Have British judges already left the EU?: the impact of the Brexit vote on EU law in the UK

In principle, EU law still applies in the UK until the day the country formally leaves. However, as Arthur Dyevre writes, the UK’s impending exit may have already altered the application of EU law in British courts. Drawing on new research, he explains that UK courts have submitted substantially fewer questions to the Court of Justice of the European Union since the Brexit referendum – a situation that could be made further complicated if the UK opts to delay or withdraw its plans to leave

Does ideology influence decision-making by EU judges?

EU courts handle cases of considerable importance for European citizens and policymakers, yet we know little about the ideology of EU judges and how it might influence their decisions. Drawing on a new study, Wessel Wijtvliet and Arthur Dyevre demonstrate that the median ideological position of a judicial panel is a significant predictor of rulings on competition and state aid cases

CONREASON – The Comparative Constitutional Reasoning Project

The primary purpose of the CONREASON project is to develop the most comprehensive and most systematic analysis of constitutional reasoning that has ever been produced. Secondary purposes are to promote the use of more rigorous (social science) methods in legal scholarship and to inform normative debates on constitutional reasoning. The focus of the project is thus not on constitutional law itself, but on the language of constitutional law. The document "369-methodological-background" contains the most important information regarding the collection. The output of the analysis contains different Excel files with results and graphs. A separate Excel file contains the descriptive statistics by different country categories (sat_an_descriptivesstats_new_1119-369.xlsx) and by three questions’ results (stat_an_BYq3q4q5-369.xlsx). Another Excel file contains the time series analysis (stat_an_Time series-369.xlsx). The third one is the ‘differentia specifica’ which contains the characteristics of how countries differ from each other (stat_an_differentia specifica_2-369.xlsx). All the correlations in all the country categories are listed in one separate Excel workbook (sat_an_total_matrix_new-369.xlsx). The cluster analyses on the non-aggregated database and on the aggregated database are in separate Excels (stat_an_nonaggregated_cluster_results-369.xlsx; stat_an_aggregated_cluster_results-369.xlsx; stat_an_argument_cluster_results-369.xlsx). The means and variances of the variables are summarized in one workbook (sat_an_mean_and_variance_3-369.xlsx). Scatterplots of a few variables correlations are illustrated in another Excel file (Stat_an_scatterplots_2-369.xlsx). The collection contains the following 36 files: - deposit form -1 working paper -1 methodological background -19 expert opinions -1 dataset -13 statistical analyse

CONREASON – The Comparative Constitutional Reasoning Project. Methodological Dilemmas and Project Design

1. Purpose and Research Questions of the CONREASON Project; 2. Methodology: Quantitative and Qualitative Methods; 2.1 Terminology; 2.2 Selection of Legal Systems; 2.3 Selection of 40 Leading Judgments; 2.4 The 5 Experts; 2.5 Questionnaire, Excel Table, Sample Judgment; Appendix A. Questionnaire for the Country Reports; B. Explanations of the 40 Leading Judgments Excel Table (Codebook); C. Sample Judgment Questions; Note on the Classification of Certain Arguments from US Constitutional Case Law; Note on the Classification of Certain Arguments from Israeli Constitutional Case La

Domestic judicial non-compliance in the European Union: a political economic approach

In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher. level law. For this reason, the recent judgment of the Czech Constitutional Court, which declared the decision of the Court of Justice in the Landtová case ultra vires, would seem to deal a terrible blow to the authority of European Union law. As doomsayers will be quick to point out, the Czech decision could set a dangerous precedent that may well one day bring down the entire edifice of EU law. However, borrowing insights from game theory and international relations, the present article argues that this judgment is more likely to remain an isolated episode than to be remembered as the tipping point when tensions between the CJEU and domestic courts escalated into the judicial equivalent of nuclear Armageddon. The author shows that many aspects of the jurisprudence of constitutional conflict can be represented as a simple Hawk.Dove game. A modified, slightly more sophisticated model then helps cast a wider light on the use of non.compliance threats by domestic high courts, notably the German Federal Constitutional Court

The Empirical Case for Judicial review: Judges as Agents and Judges as Trustees

Lawyers, constitutional theorists and political philosophers continue to disagree over the merits and legitimacy of judicial review. Borrowing insights from delegation theory, industrial organization as well as empirical accounts of judicial behaviour, this paper assesses two approaches to the justification of judicial review: (1) Following the Principal-Agent Model, judges are given the authority to review and invalidate legislation to enforce the choices of the constitutional framers over recalcitrant legislative majorities. (2) By contrast, under the Trustee Model, judges are given the power of judicial review to act as trustees of the political system: their task is to ensure that the legislative process produces the “best” outcomes or, at least, policies that are Pareto-optimal. While showing how the two models relate to traditional understandings of the role of judges, the paper assesses the extent to which the organizational setting of courts and the judges’ incentive structure ensure that judicial review works as each model prescribes. It is argued that, from an empirical standpoint, justifying judicial review is easier – albeit by no means unproblematic – under the Trustee than under the Principal-Agent Model

Making Sense of Judicial Lawmaking: a Theory of Theories of Adjudication

Engaging with the literature on courts and judicial politics, this article argues that one should distinguish between three theoretical approaches to adjudication and, correspondingly, three families of theories of judging: socio-political, legal-positivist, and normative-prescriptive. Socio-political theories are concerned with the causes of judicial behaviour, whereas legal-positivist theories focus on the relations between the decisions of the courts and the other rules of the legal system. Normative-prescriptive theories of adjudication, on the other hand, are concerned with the moral evaluation of judicial behaviour and judicial institutions. Although interrelated in various ways, the three approaches should nonetheless be viewed as complementary rather than competing approaches to adjudication. Thus expounding what amounts to a meta-theory of adjudication, the article offers a general theoretical framework aimed at facilitating dialogue and cross-fertilisation among the disciplines that study courts and judges: political science, sociology, law, and political philosophy

Uncertainty and International Adjudication

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Domestic Judicial Defiance in the European Union: A Systemic Threat to the Authority of EU Law?

In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher-level law. For this reason, recent decisions by national courts may seem to bode ill for the authority of EU law. In January 2012, the Czech Constitutional Court declared the decision of the Court of Justice in the Landtová case ultra vires. This came on the heels of other domestic rulings stressing the constitutional limits of integration. More recently, in February 2014, the German Federal Constitutional Court passed on its first-ever case to the Court of Justice. But even the German Court’s reference may be viewed as escalating, rather than easing tensions with the European Court. Still, borrowing insights from game theory and international relations, the present Article argues that, in the current configuration of European integration, these developments do not pose an existential threat to the EU legal order. It demonstrates that many aspects of the jurisprudence of constitutional conflict can be captured by a simple Hawk-Dove game in which courts compete over a jurisdictional resource but face costs when the dispute escalates into a constitutional crisis. Extensions to the baseline model then help cast a wider light on the use and effectiveness of non-compliance threats by domestic high courts. The analysis suggests that actual instances of overt domestic non-compliance such as the Czech case are more likely to remain isolated accidents. Also, despite its judicial superpower status, the German Federal Constitutional Court has incentives to seek concessions from the Court of Justice through peaceful dialogue rather than through an all-out judicial war.status: publishe