23
law and context seminars Understanding Law in its context: situating law in its legal, political and social context and talking into account the integration of State, EU and global legal sources of law. comparative judicial decision-making Mitchel Lasser
THE GRAND THEORIES OF SMALL CASES Miguel Poiares Maduro
Programme Director
Cornell University
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 decisionmaking. 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.
In this seminar we will see how seemingly mostly practical and, even, unimportant cases can hide important theoretical questions. The aim is to show the powerful interaction between theory and the practice of the law and to challenge the traditional division between “legal and political theory” and the “the practice of law”. On one hand, we will show how even the most practical and technical cases can entail important theoretical decisions. On the other hand, we will see how these practical cases can inform a better theoretical debate. The purpose is twofold: first, to achieve a better practice of law, one which is aware of its theoretical assumptions and informed by theory; second, to discuss different theories in the light of their practical consequences.