I just finished reading Mitchel de S.O.L. Lasser's Judicial Deliberations, which is a comparative analysis of the decisionmaking procedures of the French Cour de Cassation, the United States Supreme Court, and the European Court of Justice. I'll spare you a detailed review, since this is really wonkish, but suffice it to say that Lasser challenges the notion that the highly formal, deductive style of Continental legal decisions is an attempt to mislead the audience into thinking the decision was "inevitable" and not guided by normative factors. In fact, Lasser argues, there is plenty of normative reasoning going on in the background of these decisions, in the form of arguments by the Attorneys General. The end result may look clinical, but the process leading to it involved robust and open debate.
So that's Lasser's main point. I liked the way he described the ECJ's conception of its own role (remember that the European Court of Justice in Luxembourg is the court of last resort for disputes between the EU's 27 member states):
"Beware!", the Court seems so often to be saying, "We are at the very point of the fulcrum,and we can therefore feel the precariousness of the situation. We have been carefully building a delicately balanced structure that does its best to take all of the difficult and often opposing considerations into account. But if you push slightly too hard, if you resist slightly too much, in fact, if you ask a few too many questions and force us to be slightly too explicit in our responses, you will bring the entire house down!" (p. 360)
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