The Ghostwriters: Lawyers and the Politics Behind the Judicial Construction of Europe
My dissertation is a book project advancing a new theory of how lawyers promote the development of multi-level polities like the EU. Combining geospatial analysis, in-depth fieldwork, and archival research, I reconstruct how lawyers encouraged deliberate law-breaking and mobilized national courts against their own governments to entrench the EU's political authority.
Specifically, I revisit the conventional wisdom that Europe's legal construction represents a self-sustaining 'judicialization of politics'. In this view, the institutional self-interest of national judges drove them to expand their judicial review powers by enforcing EU law against their own governments and referring cases of domestic non-compliance to the European Court of Justice (ECJ). But where did these opportunities to cooperate with the ECJ come from? And were judges truly the eager authors of this process of institutional change?
I argue that domestic judges have generally resisted Europeanization, whereas lawyers have been the true brokers of this process. I set the stage for this argument in Chapters 2 through 4 by tracing why national judges avoided applying EU law even as it stood to augment their power. Overwhelmed by an excessive workload, lacking training in EU law, and disciplined by national judicial hierarchies, judges were significantly constrained as agents of change. Chapters 5 and 6 demonstrate how an initially small group of activist 'Eurolawyers' faced fewer bureaucratic constraints and mobilized to advance European integration from the bottom-up. Driven by idealism (to contribute to the liberalization of Europe), the pleasure of exercising their agency (to reshape policy), mixed with some self-interest (to gain a comparative advantage in the legal market), these pioneers developed a common repertoire of litigation strategies. They networked with business and civic associations to seek out clients willing to break national laws to reveal conflicts with EU law, occasionally turning to friends or family if a 'real' client was unavailable.
They educated judges about their duty to uphold EU rules by drafting detailed memos serving as crash courses in European law. And they ghostwrote the referrals to the ECJ that judges were unable or reluctant to write themselves, supplying the European Court with opportunities to deliver path-breaking judgments. Lawyers thus shaped the emergent political geography of transnational judicialization: Where they traveled, a dialogue between national and EU judges to advance European integration was more likely to emerge.
In short, lawyers have 'ghostwritten' Europe's political development, couching their efforts behind seemingly rights-conscious litigants and activist judges. In Chapters 7 and 8, I demonstrate that where interactions between Eurolawyers and judges became recurrent, judges increasingly assumed the mantle of promoting a pan-European rule of law. This dynamic took root in cities boasting the densest networks of structured economic clients ready to reward Eurolawyers' specialized legal services, thus enabling them to agglomerate into structured "Euro-firms." Finally, in Chapter 9 I conclude that the uniting of Europe illuminates how actors mediating between multiple social spheres - civil society, state institutions, and international organizations - can exploit their boundary position to become agents of political authority.
What is more, they can do so without disturbing the appearance that 'society', 'the state', and 'the international organization' are doing all the work. Yet even in developed countries with strong rule of law norms, a lawyer-driven pathway of political development is more subnationally uneven than uniform, more contingent on personal initiative than propelled by structural forces. The European experience proves that transnational polities do not dissolve individual agency and local context: They emerge from them.
I support this theory with quantitative and qualitative data gathered over 15 months of fieldwork in three founding EU member states: Italy, France, and Germany. This research was funded by $35,000 of competitive research grants from the National Science Foundation, the Bobst Center for Peace and Justice, and the Princeton Institute for International and Regional Studies (PIIRS). First, I geocode all national court referrals to the ECJ since 1957 to reveal local 'hotspots' and 'deserts' of litigation invoking EU law. This approach leverages Geographic Information Systems (GIS) technology and spatial autocorrelation analysis. Second, via fieldwork and semi-structured interviews with over 350 lawyers, judges, and law professors across 12 cities, I trace why judges resist Europeanization in some of these 'deserts,' and how lawyers overcome these resistances in the 'hotspot' locations. Finally, using historical newspaper records and previously classified documents from the ECJ's newly-minted historical archives, I provide the first primary source reconstruction of the litigation strategies that Eurolawyers adopted to promote European integration.
To view the dissertation's table of contents, click here. Draft chapters are available upon request.