Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy

Hardcover | February 23, 2005

byMitchel de S.-O.-lE. Lasser

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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 tooffer 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 normativeadministration 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 theunifying, 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 theinstitutional/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 legalassumptions. This drives the ECJ towards generating legitimacy by adopting a somewhat more transparent argumentative approach.

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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 S...

Mitchel de S.-O.-l'E. Lasser is a Visiting Professor at the Cornell Law School, and is Samuel D. Thurman Professor of Law at the University of Utah S. J. Quinney College of Law.

other books by Mitchel de S.-O.-lE. Lasser

Format:HardcoverDimensions:400 pages, 9.21 × 6.14 × 1.08 inPublished:February 23, 2005Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199274126

ISBN - 13:9780199274123

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Table of Contents

1. IntroductionPART I: The Three Courts - Raw Analysis2. The French Bifurcation3. The American Unification4. The European Union: Discursive Bifurcation RevisitedPART II: Bifurcation5. Similarity and Difference6. France: How is the discursive bifurcation maintained?7. The ECJ: The French bifurcation reworkedPART III: Comparison8. The Sliding Scales9. Apples and Oranges10. On Judicial Transparency, Control, and Accountability11. On Judicial Debate, Deliberation, and Legitimacy12. Concluding PostscriptBibliography