The Use of Foreign Law by the Advocates General of the Court of Justice of the European Communities

Syracuse Journal of International Law and Commerce, 2008

55 Pages Posted: 19 Jun 2008

Date Written: 2008

Abstract

In her article inspiring this symposium Lyonette Louis-Jacques observed While citation analyses exist for American legal materials, there are none for foreign and international law. The Opinions of the Advocates General of Court of Justice of the European Communities (hereafter Court or E.C.J.) are fertile ground for such an analysis yet they have almost never been the subject of study.

Citations to foreign law can be found in Advocates Generals' Opinions. The citation of United States law in Advocates General's Opinions has been the subject of two previous studies. Peter Herzog's 1998 article United States Supreme Court Cases in the Court of Justice of the European Communities looked at ten Advocates General Opinions from 1980 through 1995. Dr. Carl Baudenbacher's 2003 article Judicial Globalization: New Development or Old Wine in New Bottles? looked at references in eight opinions from 1985 through 1998, including several opinions mentioned in Herzog's article.

Both articles only discuss the Advocates Generals' citation to the law of the United States. To date no study has looked beyond citations to United States law when examining the use of foreign law in Advocates Generals' Opinions. With this study I intend to mind the gap and examine references in Advocates Generals' Opinions to the laws of all non-Member States. This study will also update the Herzog and Baudenbacher articles by examining citation to foreign law in Opinions from 1998 through 2007.

Part I of this article discusses Opinions citing U.S. law over the past decade and compares those Opinions with the Opinions identified in the Herzog and Baudenbacher articles. The theories posited in the Herzog and Baudenbacher articles are examined in light of the past decade of citation to U.S. law in Advocates Generals' Opinions. Part II explores the citation of non-Member State jurisdictions other than the United States in Advocate Generals' Opinions. Part III critically analyzes the citation of foreign law by Advocates General. This section explores why Advocates General cite foreign law, why they typically provide complete numerical citations when referring to U.S. law, and why they devote more textual space to discussing U.S. law. The study concludes with predictions for the future.

Keywords: Advocate Generals, Foreign Law, Comparative Law, European Union, European Communities, European Court of Justice

Suggested Citation

Peoples, Lee F., The Use of Foreign Law by the Advocates General of the Court of Justice of the European Communities (2008). Syracuse Journal of International Law and Commerce, 2008. Available at SSRN: https://ssrn.com/abstract=1029976

Lee F. Peoples (Contact Author)

Oklahoma City University ( email )

800 North Harvey Avenue
Oklahoma City, OK 73102
United States
405-208-6030 (Phone)

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