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Footnotes
[*] Assistant Professor of Political Science, Columbia University.
[**] Professor of Law, Harvard Law School. Formerly Anne-Marie Burley.
[1] Anne-Marie Burley and Walter Mattli, "Europe Before the Court: A Political Theory of Legal Integration," International Organization47 (Winter 1993), pp. 41-76; also Walter Mattli and Anne-Marie Slaughter, "Law and Politics in the European Union," International Organization 41, Winter 1995, pp. 183-90.
[2] Mary Volcansek, Judicial Politics in Europe: An Impact Analysis (New York: Peter Lang, 1986).
[3] Geoffrey Garrett, "The Politics of Legal Integration in the European Union," International Organization 49. no. 1, 1995, pp. 171-81.
[4] Martin Shapiro, "The European Court of Justice," in Alberta Sbragia, ed., Euro-Politics: Institutions and Policymaking in the New European Community (Washington, D.C.: Brookings Institution, 1991); Alec Stone, "Constitutional Dialogues in the European Community," (European University Institute, Florence, working paper, 1996, p. 11). Leslie Goldstein also adopts a comparative perspective in seeking to explain the relatively placid reception of the ECJ's authority by the EC states (see Goldstein, "State Resistance in USA and EC: Explaining the Difference," in Federal Unions and Sovereignty, forthcoming.)
[5] See Karen Alter, "The Making of a Rule of Law: The European Court and the National Judiciaries," (Ph.D. dissertation, Department of Political Science, Massachusetts Institute of Technology, 1996); Amy Richmond, "Member State Participation Before the European Court of Justice," (paper presented at the meeting of the European Community Studies Association, Charleston, May 11-14, 1995); and Bernadette Kilroy, "Judicial Independence or Politically Constrained Courts: The Politics of Decision-making in the European Court of Justice," (paper presented at the meeting of the International Studies Association, San Diego, April 16-20, 1996).
[6] Jonathan Golub, "Judicial Cooperation Between National Courts and the European Court of Justice: the Politics and Patterns of Preliminary References," (paper presented at the meeting of the International Studies Association, San Diego, April 16-20, 1996); idem, "The Politics of Judicial Discretion: Rethinking the Interaction Between National Courts and the European Court of Justice, "West European Politics 19, no. 2, April 1996; Karen Alter and Sophie Meunier-Aitsahalia, "Judicial Politics in the European Community: European Integration and the Pathbreaking Cassis de Dijon Decision," Comparative Political Studies 24, no. 4 ,Winter 1994, pp. 535-561; Daniel Wincott , "The Role of Law or the Rule of the Court of Justice?: An 'institutional' account of judicial politics in the European Community," The Journal of European Public Policy 2, no. 4, 1995; idem, "The European Court of Justice in a policy perspective," (paper prepared for the European Community Studies Association, Charleston, May 11-14, 1995).
[7] Jo Shaw, "European Union legal studies in crisis? Towards a new dynamic," Oxford Journal of Legal Studies 16, no. 2, 1996; Jo Shaw and Gillian More, "Introduction," in New Legal Dynamics of European Union, Jo Shaw and Gillian More, eds. (Oxford: Clarendon Press, 1995); Christian Joerges, "Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration," European Law Journal 2, no. 1, 1996; Angela Ward, "The Right to an Effective Remedy in European Community Law and Environmental Protection: A Case Study of United Kingdom Judicial Decisions Concerning the Environmental Assessment Directive," Journal of Environmental Law 5, no. 2, 1993.
[8] Shaw, "European Union legal studies in crisis?"; Juliane Kokott, "The European Court and the National Courts - Doctrine and Jurisprudence: Legal Change in its Social Context [Report on Germany]," (European University Institute, Florence, working paper, 1996, pp. 11-12, 41, 44-45).
[9] Other scholars have also offered valuable critiques of the neofunctionalist approach that are not fully addressed here. See Shaw and More, "Introduction"; Wincott, "The European Court of Justice in a policy perspective."
[10] Geoffrey Garrett, "The Politics of Legal Integration in the European Union," International Organization 49, no. 1, Winter 1995.
[11] Renaud Dehousse has reached a very similar conclusion, which he describes as the "fragmentation" of the state. Dehousse, "European Integration and the Nation-State," forthcoming in Martin Rhodes, Paul Heywood and Vincent Wright (eds.), Developments in West European Politics (London: Macmillan, 1996).
[12] Anne-Marie Slaughter, "International Law in a World of Liberal States," European Journal of International Law 6, 1995, pp. 503-538, in particular 534-538; idem, "A Typology of Transjudicial Communication," University of Richmond Law Review 29, no. 1, Allen Chair 1994.
[13] See A.M. Moravcsik, "Liberalism and International Relations Theory," (Center for International Affairs, Harvard University, working paper, No. 92-6, 1992); See e.g. Deudney, "Binding Powers, Bound States: The Logical and Geopolitics of Negarchy," (paper presented at the International Studies Association, Washington, D.C. March 28 - April 2, 1994); Zacher and Matthew, "Liberal International Theory: Common Threads, Divergent Strands," Controversies in International Relations Theory: Realism and the Neoliberal Challenge (New York: St. Martin's Press, 1995); Keohane, "International Liberalism Reconsidered," in J. Dunn (ed.), The Economic Limits to Modern Politics (1988) 235; Risse-Kappen, "Ideas Do Not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold War," 48 International Organization, 1994, p. 185; Thomas Risse-Kappen, Cooperation Among Democracies: The European Influence on U.S. Foreign Policy (Princeton: Princeton University Press, 1995), pp. 24-41; Powell, "Anarchy in International Relations Theory: The Neorealist-Neoliberal Debate," 48 International Organization, 1994, p. 313.
[14] This project is directed by Anne-Marie Slaughter, Alec Stone, and Joseph Weiler. The Dutch country study was written by Monica Claes and Bruno de Witte; the French country study by Jens Plštner; the British country study by Paul Craig; the Italian country study by Francesco Ruggieri Laderchi; the German country study by Juliane Kokott; and the Belgian country study by Herve Bribosia. These papers and a number of "cross-cutting analyses" by scholars including Karen Alter, Bruno de Witte, Alec Stone, Joseph Weiler and ourselves will be published as working papers by the Robert Schuman Centre at the European University Institute in early 1996.
[15] Anne-Marie Burley and Walter Mattli, "Europe Before the Court: A Political Theory of Legal Integration," International Organization 47 (Winter 1993); Walter Mattli and Anne-Marie Slaughter, "Law and Politics in the European Union," International Organization 49, pp. 183-190. See also: Hjalte Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policy-making (Dortrecht: M. Nijhoff, 1986); Martin Shapiro, "The European Court of Justice," In Alberta Sbragia, ed., Euro-Politics: Institutions and Policymaking in the New European Community (Washington, D.C.: Brookings Institution, 1991); Joseph Weiler, "The Community System: The Dual Character of Supranationalism," Yearbook of European Law 1 (1981); idem, "Community, Membership and European Integration: Is the Law Relevant?" Journal of Common Market Studies 21 (1983); idem, "The Transformation of Europe," Yale Law Journal 100 (1991); Jean-Paul Jacque and Joseph Weiler, "On the Road to European Union - A New Judicial Architecture. An Agenda for the Intergovernmental Conference," Common Market Law Review 27 (1990), p. 185
[16] Sonia Mazey and Jeremy Richardson (eds) Lobbying in the European Community (Oxford University Press, 1993); Philip Butt, "Pressure Groups in the European Community and Informal Institutional Arrangements," in R. Beuter and P. Taskaloyannis (eds.), Experiences in Regional Co-operation (Maastricht: EIPA, 1987); R. Pedler and M. Van Schendelen (eds), Lobbying the European Union: companies, trade associations and issue groups (Brookfield: Dartmouth Pub. Co., 1994); Sven Anderson and Kjell Eliassen (eds), Making Policy in Europe: the Europification of national policy-making (London: Sage Publications, 1993); W. Avery, "Eurogroups, Clientela and the European Community," International Organization 29 (Fall 1975), pp. 949-972; Dusan Sidjanski, "Les Groupes de Pression dans la CommunautŽ EuropŽenne," Il Politico 4 (1982), pp. 539-560; Olivier De Schutter, "La Fonction des Groupes de Pression dans la CommunautŽ EuropŽenne," Courrier Hebdomadaire, no. 1398-1399 (Paris: Centre de Recherche et d'Information Socio-Politiques, 1993); G. Wilson, Interest Groups (Blackwell, 1990); W. Grant, Pressure Groups, Politics and Democracy in Britain (Philip Allan, 1989); Philip Butt, Pressure Groups in the European Community (London: University Association for Contemporary European Studies, 1985); Sonia Mazey and Jeremy Richardson, "British Pressure Groups in the European Community," Parliamentary Affairs (1992).
[17] Carol Harlow and Richard Rawlings, Pressure through Law (New York: Routledge, 1992), p. 279.
[18] Carol Harlow, "Toward a Theory of Access for the European Court of Justice," Yearbook of European Law 12 (1992), p. 218. Articles 173 and 174 EEC Treaty authorize the Court to review the legality of acts of the Council and the Commission and to annul illegal acts at the suit of a Member State, the Council or the Commission; Article 175 empowers the Member States and the other institutions of the Community to take proceedings against the Council or the Commission in the event of their failure to act; Article 169 entitles the Commission to bring defaulting Member States before the Court.
[19] Ibid. Harlow notes elsewhere an important precedent regarding the right to intervene in which consumer groups were allowed to intervene in an unfair competition case brought by the Commission against Ford Motors (Ford of Europe Inc and Ford-Werke AG v Commission [1984] 1 CMLR 649). See Carol Harlow, "A Community of Interests? Making the Most of European Law," The Modern Law Review 55 (May 1992), p. 348.
[20] Burley and Mattli, "Europe Before the Court," p. 62.
[21] Burley and Mattli write that "while offering lower national courts a "heady" taste of power, the ECJ simultaneously strengthened its own legal legitimacy by making it appear that its own authority flowed from the national courts. It is the national courts, after all, who sought the Court's guidance; and it is the national courts who ultimately decided the cases, in the sense of issuing actual rulings on the facts." Ibid. p. 64.
[22] Marc Galanter, "Why The "Haves" Come Out Ahead: speculations on the limits of legal change," Law and Society (Fall 1974), pp. 95-160. Among corporate litigants, OSs are likely to be small companies, while large multinational corporations are likely to fill the ranks of OPs. However, even small companies could overcome their lack of experience and legal expertise by forming litigation coalitions, provided the collective action problem does not cripple cooperation among a large number of individual firms in specific industry sectors. Mancur Olson, The Logic of Collective Action: Public goods and the theory of groups (Cambridge, Mass: Harvard University Press, 1971); Russell Hardin, Collective Action (Baltimore: John Hopkins University Press, 1982).
[23] Christopher Harding pioneered the study of identities and characteristics of private litigants before the European Court of Justice in his study of litigation against Community institutions. (See Ch. Harding, "The Private Interest In Challenging Community Action," European Law Review (1980), pp. 354-361). Richard Rawlings followed Harding's and Galanter's lead and demonstrated in his penetrating account of the Sunday trading saga (discussed below) the usefulness of such socio-legal analysis of actors in the context of litigation against member states.
[24] Marc Galanter, "Why The "Haves" Come Out Ahead," pp. 101 and 100.
[25] Paul Craig, "The European Court and National Courts - Doctrine and Jurisprudence: Legal Change In Its Social Context [Report on the United Kingdom]," (European University Institute, Florence, working paper, 1996); see also Jeannette Anne Vargas, "Shifting the Balance of Power among Domestic Actors: The European Court of Justice and British Equality Treatment Policy," manuscript, Department of Government, Harvard University (March 1995); Alter and Vargas, "Shiftiing the Domestic Balance of Power in Europe: European Law and UK Social Policy," (Paper prepared for the Tenth International Conference of Europeanists, Chicago, March 14-17, 1996).
[26] Harlow, "Toward a Theory of Access for the European Court of Justice," p. 234; see also Harlow and Rawlings, Pressure through Law, especially pp. 268-89.
[27] The cases are: case 80/70 Defrenne v Sabena (no 1) [1971] ECR 445; case 43/75 Defrenne v Sabena (no 2) [1976] ECR 455; case 149/77 Defrenne v Sabena (no 3) [1978] ECR 1365. For a case on social security fought by a litigation coalition of membership groups behind a "frontman" who participated actively, see case 150/185 Drake v Chief Adjudication Officer [1980] 3 All ER 65.
[28] Harlow, "Toward a Theory of Access for the European Court of Justice," p. 232. Note that much of the equality litigation originating in British courts has had the financial backing of the Equal Opportunities Commission. The EOC is endowed with statutory power to grant legal advice and assistance to individuals. Ibid., p. 347.
[29] Italian Constitutional Court decision 170/84, Granital, [1984] CMLRev 756.
[30] Plštner writes: "[T]here were...solid economic reasons which, in advance of the Common Market made a full integration of Community law into French law paramount. How could the Project of 1992 become effective if the almost three hundred directives intended to transform it into legal reality were not to be directly enforced by the Conseil d'Etat?" He adds: "[T]he impossibility of referring to certain community regulations was bound to represent a serious economic disadvantage in comparison to their European competition. In the long run, this could have led to a movement of forum shopping, combined with some delocalization of head offices." (See Jens Plštner, "The European Court and National Courts - Doctrine and Jurisprudence: The Case of France," (European University Institute, Florence, working paper, 1996, pp. 29 and 24).
[31] Ibid., p. 27. Reporting on the Netherlands, Claes and de Witte note similar pressures by Dutch business companies seeking to enforce in the early years of the Community the competition rules of the Treaty of Rome before national courts. (See Monica Claes and Bruno De Witte, "The European Court and National Courts: Report on the Netherlands," (European University Institute, Florence, working paper, 1996, p.7).
[32] Richard Rawlings, "The Eurolaw Game: Some deductions from a saga," Journal of Law and Society 20 (Autumn 1993), pp. 309-340. The term saga has been used in the literature to denote the situation where a single policy attracts litigation over a period of time through a series of attacks.
[33] Paul Diamond, "Dishonorable Defences: The Use of Injunctions and the EEC Treaty: Case study of the Shops Act 1950," The Modern Law Review 54 (January 1991), pp. 72-87, p. 72.
[35] Harlow and Rawlings, Pressure through Law, chapter 7. The point was earlier made by Karen O'Connor in Women's Organizations' Use of Courts (Lexington, Mass.: Lexington Books 1980) and Lee Epstein, Conservatives in Court (Knoxville: University of Tennessee Press, 1980).
[36] Rawlings, "The Eurolaw Game," p. 332.
[38] He notes that uncertainty is created by ECJ judgments "too often curt and unhelpful and delphic in character." Further, the operation of Article 177 procedures is frayed with problems of delays. Even after the creation of the Court of First Instance, the average duration to obtain a preliminary ruling is still about eighteen months. Ibid., p. 333.
[39] Alter, "The Making of a Rule of Law," Chap. 6, pp. 281-282; Trevor Hartley, The Foundations of European Community Law, Second ed. (Oxford: Clarendon Press, 1988), p. 78.
[40] Francesco Ruggieri Laderchi, "The European Courts and the National Courts: Some additional observations on Italy," (European University Institute, Florence, working paper, 1996, pp. 4-5.
[42] Plštner, "The Case of France," pp. 30-31.
[43] "A Law Unto Many," Financial Times, April 3, 1995, p. 15.
[44] Burley and Mattli, "Europe before the Court," p. 63.
[45] See Alter, "Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration," (European University Institute, Florence, working paper, 1996); idem, "The European Court's Political Power: The Emergence of an Authoritative International Court in the European Union," West European Politics (July 1996) forthcoming; idem, "The Making of a Rule of Law: The European Court and National Judiciaries." Alec Stone also comments on the limitations of the neofunctionalist model as we originally formulated it, particularly with its inability to explain limits to integration. (See Stone, "Constitutional Dialogues in the European Community," p. 11).
[46] Stone, "Constitutional Dialogues in the European Community," p. 8.
[47] Let us emphasize here that this point does not rely on a model of judges "making" the law, in the sense of simply voting their policy preferences. On the contrary, the assumption is that a national judge who conscientiously seeks to apply the law as written or interpreted will not vote her policy preferences where they appear to conflict with that law unless she can achieve the result she favors by a legitimate legal route. Following European law within a framework in which a tribunal consented to by the national government has interpreted and applied it to trump national law offers such a route.
[48] Stone, "Constitutional Dialogues in the European Community," pp. 10-15.
[49] Claes and De Witte, "Report on the Netherlands," pp. 26-27, discussing Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.
[50] Craig, "Report on the United Kingdom," p. 22.
[51] Laderchi, "Some additional observations on Italy," pp. 12-13, 20-25. Alec Stone also recapitulates this story with a particularly attentive eye to the desire of the Italian Constitutional Court to preserve its prerogative of constitutional review. (See Stone, "Constitutional Dialogues in the European Community," pp. 10-11.)
[52] Plštner writes:"[To] keep...Community law out of the way seemed to be in the well understood interest of the Conseil d'Etat; it was...a question of power" and, "While for the Conseil d'Etat any change in the status quo could only mean loss of influence, things were the other way around for the Cour de Cassation. Their reaction to Direct Effect and Supremacy was a flawless application of this insight" (See Plštner, "The Case of France," pp. 28 and 32).
[53] Alec Stone argues that the Cour de Cassation was not necessarily waiting for "permission" from the Conseil Constitutionnel. As he reminds us, the lower court decision that was being appealed in Vabre, refusing to apply French law in violation of the Treaty of Rome, had been decided in 1971. (See Stone, "Constitutional Dialogues in the European Community," p. 12).
[54] Plštner, "The Case of France," p. 5. Similar doctrines were in place in most other member states of the European Union prior to their acceptance of EU supremacy. In UK jurisprudence, for example, the predominant strand before Factortame sought to "blunt the edge of any conflict between the two systems by use of strong principles of construction, the import of which was that UK law would, whenever possible, be read so as to be compatible with Community law requirements...On this view the traditional theory of sovereignty could be maintained." See Craig, "Report on the United Kingdom," p. 3 and 5. The Dutch situation is discussed in Claes and De Witte on pp. 6-8.
[55] Plštner, "The Case of France," pp. 23-24.
[56] See Alter, "The Making of a Rule of Law: The European Court and the National Judiciaries;" idem, "The European Court's Political Power: The Emergence of an Authoritative International Court in the European Union;" and idem, "Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration."
[57] Alter, "Explaining National Court Acceptance of European Court Jurisprudence," p. 21.
[59] See Alter, "The Making of a Rule of Law," Chap. 2, pp. 16-55.
[60] Plštner, "The Case of France," pp. 16 and 22-23.
[61] Golub, The Politics of Judicial Discretion."
[62] Stone, "Constitutional Dialogues in the European Community," p. 26.
[63] Alter, "Explaining National Court Acceptance of European Court Jurisprudence," pp. 23-24.
[64] See Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981), p. 29.
[65] Plštner, "The Case of France," p. 23-24.
[66] Juliane Kokott, "Report on Germany," p. 31.
[67] It might be argued that courts regard minorities as their special concern; more generally still, that courts tend to favor "the little guy," individuals against corporatist entities, "David" against "Goliath." (See Henri Etienne, "The European Court and National Courts - Doctrine and Jurisprudence: Legal Change in its Social Context [Report on Luxembourg]," (European University Institute, Florence, working paper, 1996, section 2.8). While it is true that the early cases in which national courts accepted direct effect and supremacy tended to involve presumptively weak individuals fighting for their rights against the state customs apparatus or some similar bureaucracy and seeking to enlist Community law on their side, such plaintiffs cannot readily be identified as part of a defined constituency.
[68] Laderchi, "Some additional observations on Italy," p. 12-13.
[69] Joseph Weiler, "A Quiet Revolution: The European Court of Justice and Its Interlocutors," Comparative Political Studies 26, 1994
[70] Kokott, "Report on Germany," p. 42.
[71] Burley and Mattli, "Europe Before the Court, " pp. 74-75.
[72] This point remains valid with regard to the way in which national courts can exercise their policy preferences through the choice of either EC or national law. To say that judges can use EC law to advance their individual policy preferences is not to say that they do not remain constrained by the demands of legal reasoning in either case.
[73] It was this insight that led us to conclude that "sophisticated legalists," such as Joseph Weiler, who offered an account of the evolution of legal doctrine "in political context," ultimately provided the best account. (See Burley and Mattli, "Europe Before the Court," pp. 75-76.)
[75] We did recognize the ways in which the ECJ itself was constrained by the demands of legal discourse, particularly the need to proceed incrementally and not to depart too far from a plausible reading of both the written text of the Treaty of Rome and interpretations set forth in previous caselaw. (See Ibid., pp. 72-73; and Mattli and Slaughter, "Law and politics in the European Union," p. 185.)
[76] Joseph Weiler, A Quiet Revolution, p. 521.
[77] This constraint will not operate in cases involving the protection of minority rights where the national constitution explicitly enjoins courts to protect minorities from majority decisions infringing on their fundamental rights.
[78] Consider the proposals floated at Maastricht and by some parties prior to the 1996 IGC to curtail the jurisdiction of the ECJ. See Alter, "The Making of a Rule of Law," chap. 6, pp. 282-285; Kevin Brown, "Government to demand curb on European Court," Financial Times, Feb. 2, 1995 at 10; Anthony Arnull, "Judging the New Europe," European Law Review 19, February 1994, p. 13.
[79] It should be noted that direct effect and supremacy were accepted at different times by each country, with often an appreciable lag concerning acceptance of supremacy. The Netherlands quickly accepted both doctrines in 1963/64; Germany accepted direct effect in 1963 and partial supremacy in 1971, with subsequent modifications; Belgium accepted direct effect in 1963 and supremacy in 1971; Italy accepted direct effect in 1974 and supremacy unreservedly in 1984; the highest French private law court (Court de Cassation) accepted direct effect and supremacy in 1975, although the highest administrative court (Conseil d'Etat) held out until 1990; Great Britain accepted direct effect in 1973, upon its accession to the Community, but did not accept supremacy until 1990. This account omits other variations among different courts within these various national systems.
[80] HervŽ Bribosia, "The European Court and National Courts - Doctrine and Jurisprudence: Legal Change in its Social Context [Report on Belgium]," (European University Institute, Florence, working paper, 1996, p. 37).
[81] Claes and De Witte, "Report on the Netherlands," pp. 20-21. See also J. J. C. Voorhoeve, Peace, Profits and Principles: A Study of Dutch Foreign Policy (Boston: Nijhoff, 1979).
[82] Craig, "Report on the United Kingdom," p. 14-15.
[84] Case 26/62, N.V. Algemene Transport Expeditie Onderneming Van Gend Loos v. Nederlandse Administratie der Belastingen, ECR, 1963, p. 1.
[85] See Alter, "The European Court's Political Power."
[86] Kokott, "Report on Germany," p. 43.
[87] See Plštner, "The Case of France," p. 4 on the "traditionally very parliament-centred philosophy of French law."
[88] See Bruno De Witte, "The European Court and National Courts - The Role of The Principle of Sovereignty," (unpublished manuscript, March 1995).
[89] Kokott, "Report on Germany," pp. 20 and 43.
[91] Plštner, "The Case of France," pp. 17-18, 22-23, 31, 34.
[93] Craig, "Report on the United Kingdom," pp. 23-24.
[96] See David Currie, The Constitution of the Federal Republic of Germany (Chicago: The University of Chicago Press, 1994), pp. 310-314.
[97] Kokott, "Report on Germany," p. 6.
[98] The controversy, of course, concerned its definition of those basic rights. It interpreted the right to vote, guaranteed in art. 38 of the German constitution, as entitling German citizens to an undiluted voice in the German parliament. It thus blocked further transfer of law-making power to the European Parliament in the absence of the development of a genuine German "people."
[99] Claes and De Witte, "Report on the Netherlands," p. 2-3.
[100] Laderchi, "Some additional observations on Italy, pp. 8-9.
[102] Ibid.; see also De Witte, "The Role of the Principle of Sovereignty," p. 15.
[103] De Witte, "The Role of the Principle of Sovereignty", p. 1.
[105] Perhaps the leading example of such cross-fertilization is the collection of essays by both legal scholars and political scientists in Shaw and More, New Legal Dynamics of European Union.
[106] Jason Coppell and Aidan O'Neill, "The European Court of Justice: Taking Rights Seriously?" Common Market Law Review 29 (1992), pp. 669-692.
[107] Shaw, "European Union legal studies in crisis?"
[108] Giuseppe Frederico Mancini and David Keeling, "Language, Culture and Politics in the Life of the European Court of Justice," The Columbia Journal of European Law 1, no. 3, Spring/Summer 1995. For a review of cases reining in the Court's previously expansive interpretation of Art. 30, see Peter Oliver, "Customs union and practice," Financial Times, February 21, 1996, p. 12.
[109] For an excellent discussion of this problem, see Sarah Strasser, "Evolutions and Effort: The Development of a Strategy of Docket Control for the European Court of Justice and the Question of Preliminary References," (Harvard Jean Monnet Working Paper, 3/95, 1995).
[110] Joseph Weiler is once again leading the way in this regard, seeking to articulate the values of an emerging European democracy. See J.H.H. Weiler, with Ulrich R. Haltern Franz C. Mayer, "European Democracy and Its Critique," West European Politics 18, no. 3 (July 1995). For another provocative meditation on the nature of sovereignty and democracy in the EU, see Neil MacCormick, "Beyond the Sovereign State," Modern Law Review 56 (January 1993), pp. 1-18.
[111] "Jo Shaw, "The Birth, Life and Death of a Proposal: The Ill-fated Services Draft," (paper presented at the Fourth Biennial International Conference of the European Community Studies Association, Charleston, May 11-14, 1995), p. 2.
[112] The journal is published by Blackwell for the European University Institute. The editors are Brian Bercusson, Christian Joerges, Antoine Lyon-Caen, Francis Snyder, and Joseph Weiler. The first issue was published in March 1995.