Domestic Judicial Defiance and the Authority of International Legal Regimes
APSA 2014 Annual Meeting Paper
Dyevre, Arthur. "Domestic judicial defiance and the authority of international legal regimes." European Journal of Law and Economics 44.3 (2017): 453-481.
40 Pages Posted: 4 Aug 2014 Last revised: 3 Jun 2021
Date Written: 2015
Abstract
Drawing on insights from the international relations literature, I develop a formal framework to analyse interactions between domestic high courts and supranational judges in the EU legal order. I find that domestic high courts differ considerably in their ability to influence ECJ decision making but that, as long as the domestic costs arising from an escalated conflict continue to be substantial, overt judicial non-compliance should remain rare. Weak domestic courts, in general, have much to lose and little to win from an escalated conflict with the ECJ. Meanwhile, domestic judicial superpowers -- such as the German Federal Constitutional Court -- do wield sufficient influence to contain the European Court's activism. But they, too, face strong incentives to seek compromise and dialogue with supranational judges. In the longer term, a decrease in the non-compliance costs of powerful domestic judges is what may pose the greatest systemic threat to the authority of EU law.
Keywords: Judicial Behaviour, European Integration, Political Economy, Game Theory, Judicial Relations, National Courts
JEL Classification: K40, C72, C73
Suggested Citation: Suggested Citation