Questioning Judicial Deliberations

Oxford Journal of Legal Studies, Forthcoming

27 Pages Posted: 21 Sep 2009

See all articles by Jan Komárek

Jan Komárek

iCourts, Faculty of Law, University of Copenhagen

Multiple version iconThere are 2 versions of this paper

Date Written: September 20, 2009

Abstract

Mitchel Lasser’s Judicial Deliberations compares the argumentative practices of the French Cour de cassation, the US Supreme Court, and the European Court of Justice, and examines how they achieve judicial legitimacy. In this review I firstly question the models of judicial legitimacy presented by Lasser. I believe that the French ‘institutional’ model relies far more on the interplay between the Cour de cassation and the legislature than on the system of selection of those who take part in the judicial discourse or on their conception of law which would deny judicial decision a place among the sources of law. I also have doubts about the lack of institutional means of judicial control and the emphasis on ‘argumentative transparency,’ which lies at the core of Lasser’s presentation of the US system. Finally the Court of Justice, somewhat included rather as an afterthought in the book’s central analysis, in my opinion faces rather different problems from those identified in the book. Secondly, I discuss a deeper problem of Judicial Deliberations: its lack of conceptual clarity and the rather scant evidence it provides for some of its bold claims. In conclusion I make the case for a ‘comparative jurisprudence’ approach, suggested some time ago by William Ewald, which in my view Judicial Deliberations follows only in name.

Keywords: comparative law; judicial reasoning, judicial legitimacy, judicial lawmaking, U.S. Supreme Court, Cour de cassation, European Court of Justice

JEL Classification: K10

Suggested Citation

Komárek, Jan, Questioning Judicial Deliberations (September 20, 2009). Oxford Journal of Legal Studies, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1476144

Jan Komárek (Contact Author)

iCourts, Faculty of Law, University of Copenhagen ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts/staff/profile/?pure=en/persons/591330

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