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Pavone analyzes how our evolving understanding of case-based causal inference via process-tracing should alter how we select cases for comparative inquiry. The chapter explicates perhaps the most influential and widely used means to conduct qualitative research involving two or more cases: Mill’s methods of agreement and difference. It then argues that the traditional use of Millian methods of case selection can lead us to treat cases as static units to be synchronically compared rather than as social processes unfolding over time. As a result, Millian methods risk prematurely rejecting and otherwise overlooking (1) ordered causal processes, (2) paced causal processes, and (3) equifinality, or the presence of multiple pathways that produce the same outcome. To address these issues, the chapter develops a set of recommendations to ensure the alignment of Millian methods of case selection with within-case sequential analysis.
The chapter argues that fieldwork – specifically multi-sited, semi-structured interviews and participant observation – is uniquely suited for unpacking how the constraints of daily practice within national courts frustrate the subnational reach of the European Union's (EU) legal authority. Deriving methodological insights and practical lessons from fifteen months of fieldwork in Italian, French, and German courts, the author shows how fieldwork reveals judges to be neither solely driven by individual attitudes nor by strategic quests for power: they are also employees within a bureaucracy. Anchored by the demands of established practice, knowledge, and everyday work, judges can develop an institutionally rooted consciousness resisting disruptive confrontations with new and unfamiliar rules like EU law. Through on-site iteration and triangulation, field researchers can trace, unpack, and corroborate this consciousness in real time, with an eye to also hypothesizing the conditions under which resistances to Europeanizing change can be overcome. In so doing, the researcher can intercept what one judge referred to as a ‘bureaucratic silence’ within which EU law ‘dies’: A web of habitual institutional practices scarcely detectable via other modes of social inquiry.
If the judicial construction of Europe was not catalyzed by innately activist judges, who were the pioneers of change? Focusing on the 1960s-early 1980s, Chapter 5 introduces the first Euro-lawyers: A vanguard of independent-minded WWII survivors who sought to unite Europe via bottom-up lawyering. Less institutionally constrained than judges, they nonetheless had to erode ubiquitous knowledge deficits and habits embodied by courts and clients. To this end, they cultivated local litigants and disputes exposing national barriers to European integration; constructed test cases to introduce local judges to European rules they hardly knew; cajoled their interlocutors to solicit the ECJ by ghostwriting their referrals; and thus generated opportunities for the ECJ to render pathbreaking judgments. The chapter combines oral history interviews, materials from the ECJ and lawyers’ personal archives, secondary historiographies and newspaper records, and geocoded data of the first referrals to the ECJ. The chapter speaks to readers seeking a new perspective on the origins of European integration, the creativity and mischievousness of strategic litigation, how lawyers cultivate the rights-consciousness of litigants and the activism of judges, and how individuals promote novel practices that cut against imagined possibilities.
Chapters 7 unpacks how lawyers can serve as brokers of compliance when controversial judicial decisions spark backlash. As European integration became politicized from the 1990s onwards, disruptive European Union (EU) laws and European Court of Justice (ECJ) decisions have often provoked on-the-ground resistance. Yet these controversies can also open surprising opportunities for court-driven change, provided that Euro-lawyers mobilize as "interpretive mediators:" Public advocates who vernacularize EU law and rally local stakeholders and the press to promote compliance. The chapter develops a case study design to compare lawyers' role in two explosive controversies that generated litigation before the ECJ: The 1991 Port of Genoa case (analyzed in this Chapter), which quashed the control over port labor of a centenarian union of dockworkers, and the 2015 Xylella case (analyzed in Chapter 8), which mandated the eradication of thousands of centenarian olive trees. The chapter traces how Euro-lawyers in the Port of Genoa case preempted backlash and promoted compliance by mobilizing public and interest group support via media savvy advocacy. It speaks to readers interested in how contentious politics transform legal mobilization, how lawyers cultivate people's legal consciousness when the law is politicized, and how these efforts shape judicial policymaking and Europeanization.
Chapter 9 proposes a normative and historical evaluation of the book's findings. It first considers how lawyers compare to other ghostwriters of institutional change, suggesting that what distinguishes lawyers is their capacity to wield a mediatory, boundary-blurring agency to seize opportunities for change that may be lost upon actors shackled to single institutional settings. It then addresses the ethics of lawyers’ ghostwriting, submitting that while concealed actions pushing the bounds of the acceptable are often necessary to jump-start institutional change, Euro-lawyering became more normatively problematic as it corporatized and stratified access to transnational justice. Finally, the chapter concludes by taking stock in light of the contemporary challenges plaguing the rule of law in Europe. As a wave of illiberalism and constitutional breakdowns has swept some EU member states, Euro-lawyers have gained a new raison d’être in the struggle to reclaim the elusive liberal promise of the judicial construction of Europe.
Chapter 4 pivots from daily judicial routine to the bureaucratic politics of hierarchy within civil service judiciaries. Contra the conventional wisdom that applying European law and soliciting theEuropean Court of Justice (ECJ) emancipated lower courts from supreme court control, it argues that the few low-level judges who wield European law to empower themselves are most likely to be positioned within decentralized judiciaries wherein they already enjoy sufficient autonomy and discretion to occasionally promote bottom-up change. European legal integration thus builds upon and is constrained by the hierarchical politics within state judiciaries. To support these claims, the chapter compares the willingness of lower courts to solicit the ECJ and rebel against national law and their superiors in the French administrative courts– a rigid hierarchy under the Council of State– and the French civil courts– a less hierarchical order under the Court of Cassation. For external validity, it concludes with a shadow case study of Germany’s more decentralized administrative judiciary. The chapter speaks to readers interested in the mechanisms of bureaucratic domination within judiciaries, the institutional conditions that enable and quash judicial rebellions, and how hierarchical politics constrain judges’ capacity to serve as agents of change.
Chapter 3 unpacks why national judges broadly eschewed turning to European law and the European Court of Justice (ECJ) when doing so could bolster their own power. It reveals historically rooted practices and knowledge deficits embodied in the trudge of daily work within civil service judiciaries that fostered what I call an “institutional consciousness” of path dependence: An accrued social identity tied to institutional place that magnifies the reputational risks and labor costs of mobilizing European law. This consciousness reifies judges’ sense of distance to Europe, legitimating a renouncement of agency and resistance to change. The core of this chapter revolves around interviews and oral histories with 134 judges across French, Italian, and German courts, contextualized via ethnographic fieldnotes, descriptive statistics, and secondary sources. The chapter will speak to readers interested in a historical and sociological understanding of what path dependence looks, sounds, and feels like in the courthouse, why judges in civil service judiciaries can be likened to street-level bureaucrats, and how immersive fieldwork can illuminate the habitual practices calcifying the behaviors and identities of judges.
Chapter 6 traces the evolution and corporatization of Euro-lawyering. The repertoire of court-driven change developed by the first Euro-lawyers only took root where a broader array of practitioners came to perceive it as professionally advantageous. Since the 1980s, a rising network of "Euro-firms" took charge of Euro-lawyering to tend to a corporate, transnational clientele in global cities. Conversely, in more resource-scarce client markets where lawyers are balkanized into generalists, practitioners perceive mobilizing European law as impractical - something one does elsewhere. Since the only national courts routinely solicited to apply EU law and solicit the ECJ are in cities where Euro-firms cluster, the judicial construction of Europe has evolved as patch-worked ecology hollowed by black holes. The chapter leverages geospatial analysis and comparative fieldwork across five cities where Euro-lawyering corporatized– Rome, Milan, Paris, Hamburg and Munich – and four cities where it never took root – Palermo, Naples, Bari, and Marseille. Readers curious about how lawyers rework economic and spatial inequities into place-based identities, how these identities refract access to courts and the promise of judicial policymaking, and how repertoires of legal mobilization are co-opted and corporatized will find this chapter of interest.
Chapter 2 sets the descriptive, theoretical, and methodological stage for revisiting the behavior of national courts in the process of European integration. It describes the central institutional mechanism through which national courts can partner with the European Court of Justice (ECJ) to apply European law, exercise de facto judicial review, and promote integration: the “preliminary reference procedure.” It summarizes how national courts’ use of this procedure has been theorized by the prevailing account of the judicial construction of Europe: the “judicial empowerment thesis.” And it highlights suggestive qualitative and quantitative evidence that this thesis may conceal as much as it reveals. The chapter concludes by outlining the fieldwork strategy deployed to revisit the judicial empowerment thesis in Chapters 3 and 4 and probe whether national judges have harbored more diffuse and persistent resistances to European law, the ECJ, and institutional change than has hitherto been acknowledged.