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Forum Paper Title:
Anticipating Three Models of Judicial Control, Debate and Legitimacy: The European Court of Justice, the Cour de cassation and the United States Supreme Court
Description of Forum Paper:
This paper excerpts and summarizes Professor Lasser's forthcoming
book comparing the argumentative practices of the European Court of Justice,
the French Cour de cassation and the United States Supreme Court. It argues
that the Cour de cassation depends primarily on an institutional approach for
generating judicial control, debate and legitimacy; that the Supreme Court
depends primarily on an argumentative approach; and that the ECJ depends on a
conglomerate mode that pastes together facets of the institutional and
argumentative approaches.
The paper claims that the discursive practices, institutional
arrangements and conceptual structures of these three courts are best
understood by focusing on a fundamental structural feature that distinguishes
between the French and American models of judicial discourse. Stated in the
simplest terms, this difference boils down to the fact that the French model
bifurcates its argumentation into two distinct discursive spheres (only one of
which - the syllogistic French judicial decision - is consistently made
public), while the American model integrates its two modes of argument in one
and the same public space, namely, in the judicial decision itself. The
European Court of Justice maintains the bifurcated French discursive model, but
softens it by adopting a systemic, "meta" teleological form of argumentation
that it deploys publicly in both its judicial decisions and its AG Opinions.
Biography:
 Mitchel Lasser
is the Samuel D. Thurman Professor of Law at the University of Utah's S.J.
Quinney College of Law. He received a B.A. from Yale College (1986), a J.D.
from Harvard Law School (1989), an M.A. in French literature (1990) and a Ph.D.
in comparative literature (1995) from Yale University. He teaches comparative
law, introduction to the law of the European Union, commercial law, judicial
process, and labor law. Professor Lasser has ongoing visiting relationships
with the University of Paris-I (Panthéon-Sorbonne) and the Universities
of Geneva and Lausanne. He will hold the Fulbright distinguished visiting chair
at the European University Institute in Florence, Italy, Spring Semester 2003,
and will be a visiting professor at the Cornell Law School for the Fall
Semester 2003.
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