Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

Abstract

This book compares how and why the European Court of Justice, the French Cour de cassation, and the United States 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 U.S. Supreme Court and 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 (ECJ). The book shows that the judicial system of France 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, employs a more participatory and democratic approach that reflects a more populist vision and 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.