This seminar compares the theory of judicial decision-making in the domestic courts of United States and France, and in the supranational courts of Europe (the ECJ and the ECHR). Examining the judicial argumentation of the United States Supreme Court and of the French Cour de Cassation, the seminar first reorders the traditional comparative understanding of the difference between French civil law and American common law judicial decision-making. It then uses this analysis to offer a comparative examination of the interpretive practice of the European Court of Justice. The seminar will then study the Article 6 (1) “fair trial” jurisprudence of the ECHR, which is inducing significant shifts in the traditional decision-making practices of, for example, the French, Dutch, Belgian and Portuguese supreme courts. In order to ground the theoretical discussions about these pragmatic issues of judicial practice, we will read classic American texts on the nature of judicial interpretation and decision writing. This will allow us to question the relationship between judicial transparency, deliberation and legitimacy.
Comparative Judicial Decision-Making
1.5 ECTs / 8h / English