Argumentation and Institutional Change

Although institutions constitute the rules of the social game, they are subject to constant, if incremental and marginal, endogenous change - typically as agents, interacting under them, also make use of them, applying them to everyday exchanges. In the context of legal disputes, this often takes the form of argumentation advocating specific interpretations, arguments which frequently have an impact on the form of the final decision – be it responding positively or negatively to them. When set in a decision, the same arguments will often exercise prospective influence, if they are taken into account in the reasoning of future decisions. In ways like this, argumentation exerts a pervasive influence over the structure of institutional systems. This is a concern that runs through most of my work and arises from my dissertation research on the impact of precedent based legal reasoning on judicial argumentation and decision-making. The papers here focus on it in particular (although see also the paper with Jun listed under ‘inter-institutional relations and EU Politics’).

When Politicians Make Friends with the Court: Government Amicus Curiae Briefs in Comparative Perspective.
In progress.

This paper examines the influence of amicus briefs filed by governmental actors on judicial decision-making in two legal systems: that of the European Union and the United States. There is an established tradition on both the United States Supreme Court and the European Court of Justice of considering, in their decision-making, ‘friends of the court’ briefs (‘observations’ on the ECJ) filed by actors deemed societally influential, but not direct parties to the legal case at hand. Scholars studying both courts argue that actors filing amicus briefs can have an impact on case outcomes, both in terms of indicating (and increasing) the saliency of the issue under review and affecting the substantive outcome. What is less well understood, however, is the degree to which some actors enjoy greater relative success at exerting influence by this means and may, thereby, reduce the influence of others filing briefs, thus, making all actors construe this right to file a political asset which they will act strategically to protect. The experience of the ECJ suggests that actors may perceive this to be the case: the EU treaties specify a limited set of actors that may submit briefs (only the EU institutions and member state governments) which they have rather jealously guarded, suggesting that they do believe that they derive advantages from a more exclusive right to try and persuade the court. In contrast, the Supreme Court allows and considers briefs from a wider array of actors. This paper conducts preliminary analyses of briefs filed in a sample of cases brought in the EU and US in the period between 1990 and 1997, observing the degree to which filing briefs, the nature of the brief and the other actors allowed to file has a measurable impact on the influence of governmental actors also filing briefs over case outcomes.

Discretion and Precedent in European Law
With Alec Stone Sweet in O. Wiklund (ed.) 2003, Judicial Discretion in European Perspective. Stockholm: Kluwer Law International, 84-115

Discretion inheres in the judicial function. Bodies of legal norms and principles do not apply themselves to resolve legal disputes. Instead, the judge classifies fact contexts and interprets norms in order to fit rules to situations. Rule interpretation and application entail choice, and the evolution of legal systems depends heavily on the kinds of choices judges actually make. Discretion and precedent are intimately linked and given circumstances specified in this paper, precedent functions as an evolving constraint on discretion. In this paper we propose a theory of discretion, a theory of precedent and a theory about how the two become connected over time, using the European legal system as our empirical context.

See also

‘Inter-Institutional Disputes in the EU: The Constitutional Dimension of European Integration

, with Hae-Won Jun under ‘inter-institutional relations and the EU’