In a series of stunning decisions handed down in the last few years, the European Court of Human Rights (ECHR) has condemned the decisionmaking procedures traditionally used by the French Supreme Courts (i.e., the Cour de cassation and the Conseil d’Etat). This Article traces and critiques this developing ‘fair trial”jurisprudence, which has also resulted in the condemnation of the supreme courts of Belgium, Portugal, and the Netherlands, whose decisionmaking procedures were all patterned on the French civil law model. Finally, the Article examines the dramatic and schismatic French responses that have ensued.
This Article offers a case study at the intersection of European law, comparative law and judicial theory. It begins by describing-and distinguishing between-the interpretive practices and judicial theories that characterize the legal systems of France, the United States, and the European Union. It then analyzes the complex, multifaceted, and ongoing negotiation between these systems’ divergent understandings of proper judicial practice.
Professor Lasser concludes that the largely misguided interchange between the French supreme courts and the ECHR may well have resulted in pasteurizing the French civil law procedural model into bland nonexistence. The traditionally republican and institutional modes of French judicial decisionmaking have been forced to take on some of the more democratic and argumentative features that characterize ECHR and, especially, American judicial decisionmaking. Unfortunately, these reforms may grant a new argumentative prominence-and thus normative dominance-to the French judiciary (precisely what the traditional French system was designed to avoid), without, however, counterbalancing this new judicial power with sufficiently effective individual, public, and argumentative judicial accountability. Whether these reforms mark the beginning of the end or the beginning of a creative new beginning of the French civil law model of judicial decisionmaking remains to be determined.
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