Dimensions of European Union Law: A Symposium

1 Colum. J. Eur. L. 379 (1995)


David J. Gerber. Professor of Law, Chicago-Kent College of Law. Professor Gerber was chair of the comparative law section of the Association of American Law Schools 1994-1995, and in that capacity he organized the symposium from which these papers were developed.

The papers in the symposium section of this volume of the Columbia Journal of European Law are based on talks delivered in January, 1995, at a symposium on the “Dimensions of European Union law” that I organized for the comparative law section of the Association of American Law Schools. Since that symposium, I have had many requests as to when and where the papers would be published, and I am deeply grateful to Professor George Bermann for agreeing to publish them in this journal.

My central aim in organizing the symposium was to present U.S. law teachers with tools that should be of value in thinking about, analyzing and teaching the law of the European Union (EU). In recent years, growth and change within the EU have provided an extraordinary amount of legal “data” from and about the EU, and the computer has put much of it at every law professor’s fingertips. The challenge lies in penetrating, organizing and interpreting this expanse of information. It is a daunting task for any observer, but particularly for U.S. legal scholars and teachers who are seldom in a position to focus their primary energies on following these developments and who frequently lack some of the background knowledge about European politics, policies and cultures that can be important for understanding what is happening within the Union. Our symposium, then, offers some analytical tools for making sense of the EU.

We have organized the symposium around the task of providing insights into decisionmaking within the EU. This focus on the decisional process flows from the belief that the more we know about the factors that influence decisions, the better able we should be to understand individual decisions, see patterns in the mass of decisions and, therefore, assess likely outcomes in the future. This focus should, therefore, provide insights and information of particular value to scholars and lawyers based outside the EU who seek to understand EU law.

If this thesis has merit, then a central goal of both teaching and scholarship should be to develop tools and perspectives for comprehending EU decisionmaking processes, and this is what we here offer. We first look at some of the factors that influence how we currently think about EU law. We then look at decisionmaking in the European Court of Justice and in the European Commission, exploring cultural, linguistic, institutional and constitutional factors that influence judicial and administrative decisions. In the oral version of the symposium Professor Anne-Marie Slaughter (formerly Burley) completed this picture by using social science tools to illuminate the ways in which political factors influence EU decisionmaking. We regret that Professor Slaughter is obligated to publish her very valuable contribution elsewhere. In this brief introduction I set the stage for the papers that follow by seeking to shed light on how we currently think about EU law. The central idea here is that we are likely to be better able to fashion effective perspectives on the law of the European Union if we have a sense of the influences that shape our current thinking about it. I seek to identify, therefore, some of the factors that have shaped the way U.S. scholars perceive European Union law and suggest some of the ways in which these perspectives may influence writing about and teaching EU law in the United States.

Judge Frederico Mancini and his co-author David Keeling then provide an “insider’s view” of the process of decisionmaking in the European Court of Justice. They reveal how cultural, linguistic and other factors affect the way judges think about their judicial roles, interact with each other and, ultimately, reach decisions. A former law professor at the Universities of Rome and Bologna, Judge Mancini has been a member of the court for more than a decade. He brings to his task a broad range of sensibilities and intellectual tools, and the result is a remarkably insightful analysis of the decisionmaking processes of the court.

Professor George Bermann then portrays the institutional, procedural and constitutional dynamics of decisionmaking in the EU. His focus is on decisionmaking in the European Commission, and his depiction of this often opaque process is exceptionally illuminating. Drawing on his expertise in comparative law, and particularly comparative administrative law, he identifies and analyzes with much insight the kinds of influences that institutional and procedural structures exert on the process of decisionmaking in the Commission.