The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

The politics of judicial discretion: Rethinking the interaction between national courts and the Eurpean court of justice

The recognition that courts play a significant role in the process of European integration has focused attention on the interaction between national judges and the European Court of Justice. The prevailing theoretical model of this interaction holds that a variety of incentives impel national judges to co‐operate with the ECJ by providing it with frequent preliminary references. This article tests the ability of the model to account for the behaviour of national courts during the period 1972–94. In assessing the utility of the model two central claims are made. First, that the model as currently constructed is incapable of explaining the patterns of references originating from various member states, particularly the consistent lack of references from British courts. Second, that the level of British references, and patterns of judicial co‐operation in general, can be better understood by questioning the model's core assumption ‐ that national judges face powerful incentives to refer to the ECJ. As a first step in this direction, the article examines how the discretion to make or withhold references bestows on national judges the power to hasten or retard the pace of integration as well as to influence specific policy outcomes.     

Courts and the politics of secrecy: national security,human rights and the importance of supranational oversight

Abstract

The article examines the use of state secrecy in court litigation concerning alleged gross human rights violations committed in the struggle against terrorism, focusing specifically on cases of extraordinary rendition and comparing the performance of courts in the United States, in Italy and the European Court of Human Rights (ECtHR). The article explains that national courts have validated the assertion by national governments of the state secret privilege in litigation involving cases of extraordinary rendition, ensuring de facto immunity to individuals involved in gross human rights abuses. On the contrary, it underlines that the ECtHR has pierced the veil covering these ‘deep secrets’, undertaking a strict scrutiny of acts of extraordinary rendition to torture committed by governments in the name of national security. As the article argues, the success of the ECtHR can be explained by a number of reasons, including distance, time and institutional design. In conclusion, the case law of the ECtHR on secrecy and national security confirms the continuing importance of supranational courts as instruments of external oversight on the human rights practice of European states.     

Comment on Chester Hartman and David Robinson's “evictions: The hidden housing problem”

Abstract

Evictions and involuntary moves negatively affecting poor renters present a significant problem. Creating a national database to comprehensively document the magnitude of the problem, however, presents serious difficulties. Most local courts do not publish data on court actions involving evictions. To do this on a national level and to obtain all of the data needed by the authors would require special funding and the cooperation of courts; these are unlikely to materialize. To obtain comprehensive data on involuntary moves beyond the court system would present even greater difficulty.

Improvements can be made in existing protections for tenants vulnerable to displacement without compiling comprehensive national data. Previous examples include the debates over displacement and homelessness. Since legislative and administrative reforms are more likely at the state and local levels, reform efforts, including any data collection, should be primarily focused there.     

The European Court of Justice as a Federator

The European Court of Justice is often seen as the motor ofEuropean legal integration because it "constitutionalized "the treaties establishing the European Communities (EC) throughits jurisprudence. In reality though, the Court's role has ratherbeen that of a promotor or provocateur because the member statesand the national courts have been, by and large, cooperativepartners in this process, and many of the political consequencesof the Court's rulings have been hidden in its legal language.The Court will likely be careful in the future about continuingits judicial activism with the same vigor. Since the Treatyon European Union, many politically divisive issues are potentiallyopen to the Court's interpretation. In addition, the cooperativeattitude, by member states and the national courts, is no longerguaranteed.     

Gaining and seeking access: The European adaptation of domestic interest associations

Abstract. The multilevel governance literature on European politics argues that supranational governing arrangements have increased their autonomy vis–à–vis national governments. As private interests increasingly bypass national levels and become active in transnational Euro–level policy networks, national governments are no longer the sole interface between supranational and national levels. In contrast, the European Union might also be conceptualised as a two–level interstate negotiation system, an approach assuming that interests are formed and aggregated at the national level. Societal interests enter the fray of European negotiations via national executives, and private interests bypassing the national level are considered as a rather marginal, even irrelevant, phenomenon. In addition, both accounts expect different outcomes regarding which sorts of private interests – diffuse or specific – seek and gain access to both domestic and European public actors. By analysing the varying network strategies of domestic private actors, in particular interest associations, this article explores some propositions held by these two approaches. After a more comprehensive outline of some hypotheses, evidence collected among public and private actors at both the domestic (Belgian) and European levels will be analysed. In general, the results suggest that Euro–level networks of domestic interests are substantially related to their structural location within the domestic realm, that network strategies tend to be quite bureaucratic and that the sort of interest represented – diffuse or specific – has a considerable effect on gaining and seeking access.     

Regulating Assisted Reproduction in Canada,Switzerland, and the USA: Comparing the Judicialization of Policy-Making

This article analyses the extent to which courts shape policies for assisted reproduction. While the USA is considered to be the most litigious country, Canada has observed a growing involvement of the courts from the 1980s onward, and Switzerland is characterized by a modest degree of judicialization. Based on national patterns, we would expect litigation and court impact to vary across these three countries. As the empirical analysis reveals, policy-process-specific variables such as the novelty of regulation, self-regulation by key stakeholders, and the policies in place better explain the variation in the judicialization of policy-making.     

论国际组织在内国法院的豁免权

作为国际法的主体,政府间国际组织在一国国内享有相应的特权与豁免。与国家主权豁免不同,国际组织豁免的主要理论依据是职能必要理论,这不仅体现在有关的国际法文件中,也体现在国内法中。国际组织在内国法院的豁免权问题,具有国际、国内双重性质,涉及到国际法在内国法的适用问题。同时,职能必要也是内国法院判定国际组织豁免权的重要标准,多数国际组织在内国法院一般享有绝对豁免权。     

Ideological Competition and Conflict in the Judicial Hierarchy

Circuit splits, or conflicting rules across multiple U.S. Courts of Appeals, have important policy implications and dramatic effects on Supreme Court case selection, yet we know little about the incentives ideological lower courts face when deciding whether to initiate conflict. This article develops a formal model of a judicial hierarchy where lower court judges are subject to review by a high court with distaste for unresolved conflict, termed “split-intolerance,” and with uncertain preferences over policy. Lower courts may compete by investing costly effort in legal quality to make their rules more attractive. In equilibrium, lower courts may initiate conflict even when the odds of success before the high court are remote. Surprisingly, lower courts grow more likely to create conflict as the high court's split-intolerance increases; however, split-intolerance can also incentivize greater lower court effort. I present qualitative evidence illustrating the model's explanatory power.     

Federal court outcomes in asylum-related appeals 1980–1987: A highly ‘politicized’ process

Federal court outcomes (both district courts and courts of appeal) in asylum-related appeals during the period 1980–1987 are significantly related to three political variables: the political party affiliation of the President who appointed the judge or judges involved in an appeal, the nature of judicial constituencies, and the involvement of interest groups in the appeals. Court outcomes are not, on the other hand, significantly related to two contextual factors: geopgraphic region of the decisionmakers and the unemployment rate. The federal courts did not exhibit the bias of the immigration bureaucracy in favor of hostile-country aliens (aliens from communist, socialist, or leftist countries); nor did these courts favor aliens from European countries.     

National Constitutional Courts,the Court of Justice and the Protection of Fundamental Rights in a Post-Charter Landscape

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union (CJEU) and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart(s) on fundamental rights issues.     

An alternative route of European integration: The community's railways policy

The process of European integration and policy‐making is sometimes rather puzzling. On the one hand, it is well documented that with respect to the implementation of European legislation member states tend to do less than they are supposed to do. On the other hand, it is striking that with respect to the implementation of the Council Directive 91/440 on the development of the Community's railways many member states went far beyond the minimum required by the European legislation. We argue that these differing evaluations of implementation success can be traced to different implementation approaches, which may be termed the ‘compliance approach’ and the ‘support‐building approach’. While the first is directed at prescribing domestic reforms from above’, the latter aims at triggering European integration within the existing political context at the national level. Here, successful implementation refers to the extent to which European legislation triggers domestic changes by stimulating and strengthening support for European reform ideas at the national level. In this respect, European legislation can influence the domestic arenas in basically three ways: by providing legitimisation for political leadership, concepts for the solution of national problems, and strategic constraints for domestic actors opposing domestic reforms.     

Court pedagogies and the construction of passive ordinary citizens in the French banlieue

ABSTRACT

This article contributes to conceptualizations of the pedagogical state by analyzing judicial spaces, beyond the courtroom, as key sites of citizenship formation. I explore pedagogical sessions organized by a judicial structure in France, whose geographical proximity to seemingly non-integrated populations in the banlieue allows it to teach them the laws, rules, and institutions that support citizenship. I argue that the pedagogical court seeks to construct governable ‘passive ordinary citizens’ whose main duty is to embody and practice the basic rules of socialization – respect for others and the rule of law – in their ordinary lives as a strategy of crime prevention. In that sense, courts are able to redefine not only the procedural but the substantive elements of citizenship as well.     

How to Measure the Europeanisation of a National Legislature?

While there is no shortage of research on national parliaments and European integration, empirical studies on the impact of EU on domestic legislatures are lacking. This article contributes to the literature by discussing the challenges involved in measuring the Europeanisation of national parliaments and through suggesting several hypotheses and indicators – EU-related national laws, the use of control instruments (confidence votes and parliamentary questions) in EU matters, and the share of committee, plenary and party group meeting time spent on European matters – that can be used in subsequent comparative research. Evidence from Finland shows the differentiated impact of Europe: while the share of domestic laws related to EU is smaller than often argued, particularly committees are burdened to a much larger extent by European matters.     

Traveling frames: How corporate and civil society actors try to influence public administration and courts in a case on nuclear emission data in Switzerland

This paper focuses on the framing strategies lobbyists apply to influence public policy in a case on nuclear emission data in Switzerland. Framing analysis is at the heart of communication science and has been applied in lobbying settings, but framing theory has not yet been fine‐tuned to the specificities of public affairs research. This qualitative case study gives insights into the dominant frames seven actors ranging from corporations to nongovernmental organizations to public institutions employ to defend a legal court case in the nuclear power industry. The results of the document analysis and the interviews show that frames travel among diverse actors and only some are picked up by the courts, at times stating a position opposite to the one initially intended by the frame sponsor. A public affairs‐specific integrated process model of framing is presented that views the media in the role of a moderator in the framing process and pronounces the lobbying organizations' strategic goals, the different stakeholders as target audiences, and the outcomes of the public affairs process.     

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

Past research has revealed conflicting findings regarding the degree to which judges on European apex courts enact their policy preferences or instead disagree on the basis of divergent legal views. We investigate disagreement between judges on the Norwegian Supreme Court between 1996 and 2016. During this period, the court dealt with a greater volume of policy-relevant cases than previously. The method of appointment to the court was also changed to a judicial appointments commission. We analyse non-unanimous cases using item response theory models. We find that judges are not divided along left–right lines but instead disagree about the appropriate degree of deference to give to public authorities. There is no significant association between the appointing government and judges' ideal points either before or after the reform to appointments. Judges who were formerly academics are however much less deferential than career judges or judges who were previously lawyers in private practice.     

Courts, the new constitutionalism and immigrant rights: The case of the French Conseil Constitutionnel

Abstract.  This article examines the role of courts in the creation of immigrant rights. Immigrant rights are located within a broader 'new constitutionalism' (especially in postwar Europe), in which courts have abandoned their traditional passiveness toward the political process and taken on the role of de facto legislator. Analyzing the immigration jurisprudence of the French Conseil Constitutionnel , we argue that courts are torn between two opposite imperatives: to protect an especially vulnerable category of people from the enormous police powers of the modern administrative state; and to respect an elementary exigency of sovereign stateness – that is, the capacity to draw a distinction between 'citizens' and 'aliens' as differently situated persons without a right of entry and permanence.     

Punishing environmental crimes: An empirical study from lower courts to the court of appeal

We analyze judicial policy lines concerning the punishment of environmental crime using a unique European dataset of individual criminal cases, including case‐specific information on offenses and offenders. We investigate policy choices made by lower criminal courts, as well as their follow‐up by the relevant court of appeal. The sanctioning policy of the courts has proven to be varied as well as consistent. Judges carefully balance effective and suspended penalties, most often using them cumulatively, but in specific cases opting to use them as substitutes. Overall, both judges in lower and appeal courts balance environmental law and classic criminal law and aim at protecting individuals and their possessions as well as the environment.     

The development and reform of court organization and administration

Over the past decade, court reform has become an integral part of the process of economic, political and administrative development. This article will examine the causes and consequences of court reform's new role. After reviewing the key national and international actors and examining the political and economic assumptions used to justify this initiative, the article will then argue that (1) the priority of judicial reform in the development agenda is linked not only to a theory of the role of courts and law in political and economic development, but also to the emergence of the field of judicial administration and court management, beginning in the United States and extending to a number of other countries; (2) the limitations built into the judicial administrative reforms implemented in OECD countries may be accentuated in the developing world; and (3) the very success of judicial administration as a field allows it to be used, in conflict with its fundamental tenets, to advance the political agendas of OECD countries as well as developing and transitional regimes. Copyright © 1999 John Wiley & Sons, Ltd.