The Transformation or Reconstitution of Europe : The Critical Legal Studies Perspective on the Role of the Courts in the European Union

Transformation or reconstitution of Europe : the European critical legal studies perspective / Siniša Rodin and Tamara Perišin -- On textualist and purposivist interpretation (challenges and problems) / Pierre Schlag -- Proportionality and deference in contemporary constitutional thought / Duncan Kennedy -- Discovering the law of the EU : the European Court of Justice and the comparative law method / Koen Lenaerts -- Ideology and legal reasoning at the European Court of Justice / Tamara Apeta -- Judicial appointments, judicial independence, and the European high courts / Mitchel Lasser -- Transformation or reconstitution of national regulatory policies at the EU level : insiders and outsiders under free movement rules / Tamara Perišin -- Useful effect of the framework decision on the European arrest warrant / Siniša Rodin -- Reflections on European legal formalism / Pieter-Augustijn van Malleghem -- Legal scholarship and external critique in EU law / Daniela Caruso and Fernanda Nicola. "It is generally understood that EU law as interpreted by the ECJ has not merely reconstituted the national legal matrix at the supranational level, but has also transformed Europe and shaken the well-established, often formalist, ways of thinking about law in the Member States. This innovative new study seeks to examine such a narrative through the lens of the American critical legal studies (CLS) perspective. The introduction explains how the editors understand CLS and why its methodology is relevant in the European context. Part II examines whether and how judges embed policy choices or even ideologies in their decisions, and how to detect them. Part III assesses how the ECJ acts to ensure the legitimacy of its decisions, whether it resists implementing political ideologies, what the ideology of European integration is, and how the selection of judges influences these issues. Part IV uses the critical perspective to examine some substantive parts of EU law, rules on internal and external movement, and the European arrest warrant. It seeks to determine whether the role of the ECJ has really been transformative and whether that transformation is reversible. Part V considers the role of academics in shaping the narratives of EU integration."--Bloomsbury Publishing Contents List of Contributors Part I: Introduction 1. Transformation or Reconstitution of Europe: The European Critical Legal Studies Perspective I. Changing the Paradigm as a Response to Social Change II. Critical Legal Studies and European Legal Thought III. Critical Legal Studies in the European Union Context Part II: Adjudication and the Transformation of Law and Society 2. On Textualist and Purposivist Interpretation (Challenges and Problems) I. The Interpretive Situation—Recurrent Tensions and Conflicts II. Textualism III. Purposivism IV. Conclusion 3. Proportionality and 'Deference' in Contemporary Constitutional Thought I. Contemporary Legal Thought II. A Hypothetical Judge in a Hypothetical Situation III. Deference IV. Deciding on the Basis of Proportionality to Cast Proportionality as Deduction or Teleology to Avoid Bad Consequences of Candour V. Conclusion: Judging and Politics as a Vocation Part III: The Role of the ECJ in the Transformation or Reconstitution of Europe 4. Discovering the Law of the EU: The European Court of Justice and the Comparative Law Method I. The Comparative Law Method II. The ECJ's Evaluative Approach III. Concluding Remarks 5. Ideology and Legal Reasoning at the European Court of Justice I. Introduction II. About the European Court of Justice III. There Must be Ideology behind the ECJ's Decisions IV. Difficulties of Discovering Ideology in Adjudication V. Why do Courts Deny Ideology in Adjudication? VI. Conclusions 6. Judicial Appointments, Judicial Independence and the European High Courts I. Introduction II. The Reforms III. The Theory: Tactical Approaches to Judicial Independence IV. Connecting the Tactical Theory to the European Practice V. Conclusion: A More Complex Picture Part IV: Substantive Law of the EU and the Transformation of Europe 7. Transformation or Reconstitution of National Regulatory Policies at the EU Level: Insiders and Outsiders under Free Movement Rules I. Introduction: An Old Paradigm through a New Lens II. Key Concepts and Premises III. Role of the Court in the Treatment of Insiders and Outsiders IV. Conclusion 8. Useful Effect of the Framework Decision on the European Arrest Warrant I. Introduction II. The Quest for Legitimacy III. Normative Context and Added Value of the EAW IV. Implementation of the EAW and Its Useful Effect V. Final Remarks Part V: Academic Discourse and the Transformation of Europe 9. Reflections on European Legal Formalism I. An Account of European Legal Culture II. Formalism and Anti-formalism III. Legitimacy IV. Conclusion 10. Legal Scholarship and External Critique in EU Law I. Introduction: Nostalgia and Engagement II. EU Law Scholarship as Engagement III. Distributive Arguments in Adjudicatory Practice IV. External Critique: The Role of European Scholars V. Scholarship and the Challenge of Indeterminacy Index Transformation or reconstitution of Europe : the European critical legal studies perspective / Siniša Rodin and Tamara Perišin -- On textualist and purposivist interpretation (challenges and problems) / Pierre Schlag -- Proportionality and deference in contemporary constitutional thought / Duncan Kennedy -- Discovering the law of the EU : the European Court of Justice and the comparative law method / Koen Lenaerts -- Ideology and legal reasoning at the European Court of Justice / Tamara Apeta -- Judicial appointments, judicial independence, and the European high courts / Mitchel Lasser -- Transformation or reconstitution of national regulatory policies at the EU level : insiders and outsiders under free movement rules / Tamara Perišin -- Useful effect of the framework decision on the European arrest warrant / Siniša Rodin -- Reflections on European legal formalism / Pieter-Augustijn van Malleghem -- Legal scholarship and external critique in EU law / Daniela Caruso and Fernanda Nicola. "It is generally understood that EU law as interpreted by the ECJ has not merely reconstituted the national legal matrix at the supranational level, but has also transformed Europe and shaken the well-established, often formalist, ways of thinking about law in the Member States. This innovative new study seeks to examine such a narrative through the lens of the American critical legal studies (CLS) perspective. The introduction explains how the editors understand CLS and why its methodology is relevant in the European context. Part II examines whether and how judges embed policy choices or even ideologies in their decisions, and how to detect them. Part III assesses how the ECJ acts to ensure the legitimacy of its decisions, whether it resists implementing political ideologies, what the ideology of European integration is, and how the selection of judges influences these issues. Part IV uses the critical perspective to examine some substantive parts of EU law, rules on internal and external movement, and the European arrest warrant. It seeks to determine whether the role of the ECJ has really been transformative and whether that transformation is reversible. Part V considers the role of academics in shaping the narratives of EU integration."--Bloomsbury Publishing The introduction explains how the editors understand critical legal studies and why its methodology is relevant in the European context. Part II examines whether and how judges embed policy choices or even ideologies in their decisions, and how to detect them. Part III assesses how the ECJ acts to ensure the legitimacy of its decisions, whether it resists implementing political ideologies, what the ideology of European integration is, and how the selection of judges influences these issues. Part IV uses the critical perspective to examine some substantive parts of EU law, rules on internal and external movement, and the European arrest warrant. It seeks to determine whether the role of the ECJ has really been transformative and whether that transformation is reversible. Part V considers the role of academics in shaping the narratives of EU integration