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.

 

Table Of Contents:

Part I: Introduction

1. Transformation or Reconstitution of Europe: The European Critical Legal Studies Perspective 

Siniša Rodin and Tamara Perišin

Part II: Adjudication and the Transformation of Law and Society

2. On Textualist and Purposivist Interpretation (Challenges and Problems) 

Pierre Schlag

3. Proportionality and 'Deference' in Contemporary Constitutional Thought 

Duncan Kennedy

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 

Koen Lenaerts

5. Ideology and Legal Reasoning at the European Court of Justice 

Tamara Capeta

6. Judicial Appointments, Judicial Independence and the European High Courts 

Mitchel de S-O-l'E Lasser

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 

Tamara Perišin

8. Useful Effect of the Framework Decision on the European Arrest Warrant 

Siniša Rodin

Part V: Academic Discourse and the Transformation of Europe

9. Reflections on European Legal Formalism 

Pieter-Augustijn Van Malleghem

10. Legal Scholarship and External Critique in EU Law 

Daniela Caruso and Fernanda Nicola