Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

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.

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.