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11 - Transnational Judicial Communication: The European Union

from IV - Constitutional Adjudication and Interpretation

Published online by Cambridge University Press:  17 February 2022

David S. Law
Affiliation:
University of Virginia
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Summary

National judicial systems within the European Union (EU) face pressures toward alignment under the policy agendas for judicial cooperation connected with the Lisbon Treaty and the widespread practice of ‘transnational borrowing’ among courts. Using the CJEU and ECtHR as case studies in the phenomena of judicial culture and transnational judicial communication, this chapter explores how constitutional norms and formal policies interact with contextual influences (including informal judicial interaction and evolving national ideas and practices regarding judging and judicial organisation) to produce increasing legal alignment among the member states. In doing so, the chapter explicitly highlights the need to combine comparative legal analysis with socio-legal research methods in order to understand the evolution of constitutional law.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2022

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References

Primary Sources

Andenas, Mads and Fairgrieve, Duncan (eds.), Courts and Comparative Law (Oxford University Press, 2015), particularly part III (“Comparative law within a European and international law context”) and part V (“Constitutional courts as users of comparative law”).CrossRefGoogle Scholar
Claes, Monica, Visser, Maartje De, Popelier, Patricia and Heyning, Catherine Van de (eds.), Constitutional Conversations in Europe: Actors, Topics and Procedures (Intersentia, 2012), chs. 1, 7.Google Scholar
Groppi, Tania and Ponthoreau, Marie-Claire (eds.), The Use of Foreign Precedents by Constitutional Judges (Hart, 2013), chs. 2 (Canada), 3 (India), 5 (Israel), 7 (South Africa), 11 (Japan), 14 (Russia), 15 (Taiwan), and 16 (United States).Google Scholar
Slaughter, Anne-Marie, A New World Order (Princeton University Press, 2004), ch. 2.Google Scholar

Secondary Sources

Amtenbrink, Fabian and Vedder, Hans H.B., European Union Law: A Textbook (Eleven International, 2021), chs. I (introduction), II (nature of the European legal order), III (institutional framework), V (legal protection in the European Union), and XI (development of European integration in context).Google Scholar
De Búrca, Gráinne and Weiler, J. H. H. (eds.), The Worlds of European Constitutionalism (Cambridge University Press, 2011), chs. 1 (Bruno de Witte) and 4 (Daniel Halberstam).CrossRefGoogle Scholar
Schütze, Robert, European Constitutional Law, 2nd ed. (Cambridge University Press, 2016), chs. 1 (constitutional history), 3 (direct effect), 4 (supremacy/pre-emption), 10 (European judicial procedures), 11 (national judicial procedures), and 12 (EU fundamental rights).Google Scholar
Torres Pérez, Aida, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication (Oxford University Press, 2009), particularly part III on “judicial dialogue.”CrossRefGoogle Scholar

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