Integration by Fiat?: The Institutional Context of European Judicial Decisions and Questions About Judicial 'Activism'

Alex D. Jakle 

University of Michigan Law School; University of Michigan at Ann Arbor - Horace H. Rackham School of Graduate Studies
August 7, 2013

Abstract:      
There is no shortage of accounts of the European transnational courts as 'heroic' defenders of human rights, imposing progressive norms on unwilling national governments. However, American constitutional development has abandoned this view of the US Supreme Court, situating it instead as a political institution subject to institutional constraints. Using literature from this field, I argue that 'heroic' conceptions of the European courts are similarly misplaced. Using doctrine and political data, I argue that the European Court of Justice and European Court of Human Rights are merely enforcing popular, majoritarian norms.

Number of Pages in PDF File: 25

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2307758