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Nature or Nurture? Judicial Law Making in the European Court of Justice and the Andean Tribunal of Justice

Karen J. Alter
Northwestern University - Department of Political Science

Laurence R. Helfer
Duke University - School of Law


October 28, 2009

International Organization, Vol. 64, No. 4, 2010
Duke Law School Public Law & Legal Theory Paper No. 258
Northwestern Public Law Research Paper Series No. 09-16

Abstract:     
Are international courts power-seeking by nature, expanding the reach and scope of international rules and their own authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional clone and the third most active IC. We argue that international judges are more likely to become expansive lawmakers where they are supported by sub-state interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This comparison of two structurally identical international courts calls into question prevailing explanations of ECJ lawmaking, and it suggests that prevailing scholarship puts too much emphasis on self-interested power seeking of judges, the importance of regime design features, and the preferences of governments in explaining IC lawmaking.

Keywords: Andean Community, Andean Tribunal, International Courts, International Tribunals, European Court of Justice, European Community, Regional Trade, Regional Integration, International Relations, Administrative State, Administrative Agencies, Judicial Politics, Preliminary References

Working Paper Series

Date posted: June 23, 2009 ; Last revised: November 02, 2009

Suggested Citation

Alter, Karen J. and Helfer, Laurence R., Nature or Nurture? Judicial Law Making in the European Court of Justice and the Andean Tribunal of Justice (October 28, 2009). International Organization, Vol. 64, No. 4, 2010; Duke Law School Public Law & Legal Theory Paper No. 258; Northwestern Public Law Research Paper Series No. 09-16. Available at SSRN: http://ssrn.com/abstract=1424423


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Contact Information

Karen J. Alter (Contact Author)
Northwestern University - Department of Political Science ( email )
601 University Place
Evanston, IL 60208
United States
Laurence R. Helfer
Duke University - School of Law ( email )
Box 90360
Durham, NC 27708
United States
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