Publications

In Preparation
Pavone, Tommaso. In Preparation. ““In This Bureaucratic Silence EU Law Dies:” Fieldwork and the (Non)-Practice of EU Law in Na- tional Courts.” New Methodologies for the Study of EU Law and the European Court of Justice.
Forthcoming

What happens when international courts are asked to tackle local political controversies and their judgments subsequently spark contentious resistance? In the European Union (EU), scholars have posited that the politicization of the often‐liberalizing rulings of the European Court of Justice (ECJ) provokes Euroscepticism and noncompliance. In contrast, I argue that contentious politics may also produce permissive conditions for activist “Eurolawyers” to promote awareness of EU law and mobilize support for liberalization. To unpack this claim, I conduct an intensive case study of perhaps the most explosive controversy in Italy to generate litigation before the ECJ: The 1991 “Port of Genoa” case, where the public monopoly rights of a centuries‐old dockworkers' union were challenged. Leveraging interviews, court and newspaper records, public opinion data, and litigation statistics, I trace how—despite dockworkers' vigorous resistance—a pair of entrepreneurial lawyers liberalized Italy's largest port by combining strategic litigation with a public relations campaign to mobilize a compliance constituency. I conclude with insights the case study offers into the contemporary politics of transnational governance.

Pavone, Tommaso. Forthcoming. “Selecting Cases for Comparative Sequential Analysis: Novel Uses for Old Methods.” The Case for Case Studies. Cambridge University Press. Abstract

This chapter proposes novel approaches to comparative case study research by revisiting the most influential and widely-used means to conduct qualitative research involving two or more cases: Mill’s methods of agreement and difference. I argue that as traditionally used, Millian methods of case selection embrace a flawed treatment of cases as static units to be synchronically compared rather than as social processes unfolding over time. As a result, Millian methods risk prematurely rejecting and otherwise overlooking (1) ordered causal processes, (2) paced causal processes, and (3) equifinality, or the presence of multiple pathways that produce the same outcome. Taking a more constructive and prescriptive turn, the chapter provides a set of recommendations for ensuring the alignment of Millian methods of case selection with within-case sequential analysis. It begins by outlining how the deductive use of processualist theories can help reformulate Millian case selection designs to accommodate ordered and paced processes. More originally, the chapter concludes by proposing a new, alternative approach to comparative case study research – the method of inductive case selection. By making use of Millian methods to select cases for comparison after a causal process has been identified within a particular case, the method of inductive case selection enables researchers to assess (1) the generalizability of the causal sequences, (2) the logics of scope conditions on the causal argument, and (3) the presence of equifinal pathways to the same outcome. In so doing, the weaknesses of Millian approaches can be converted into strengths, aligning comparative case study research with the advances of processualist researchers.

 

t.pavone-selecting_cases_for_comparative_sequential_analysis_caseforcasestudiesbook_v2.pdf
2018

Judicial empowerment is often cited as a driver of transnational governance, particularly in the European Union (EU). In this view, lower national courts enthusiastically began referring cases to the European Court of Justice (ECJ) to acquire new powers of judicial review. Revisiting this theory, I argue that path-dependent, everyday practices within domestic judiciaries stemming from insufficient EU legal training, workload pressures, and cultural aversions to judicial review can resist Europeanization even when it would lead to empowerment. The argument is evaluated via a critical case study of judicial practice in Italy that is placed in a broader comparative context.

Pavone, Tommaso, and R. Daniel Kelemen. 2018. “The Political Geography of Legal Integration: Visualizing Institutional Change in the European Union.” World Politics 70 (3): 358-397. Publisher's Version Abstract

 

How are processes of political development structured across space and time by preexisting institutions? This article develops a spatiotemporal theory of institutional change by analyzing the evolving infrastructural power of the European Union's legal order using geospatial methods. Specifically, the authors theorize that the pattern and pace of the domestic spread of EU law has been shaped by preexisting state institutions—particularly by the degree to which national judiciaries are hierarchically organized. To assess this claim, the article compares patterns of domestic judicial enforcement of EU law across France (a unitary state with a centralized judiciary), Italy (a weaker unitary state with a centralized judiciary), and Germany (a federal state with a decentralized judiciary). Developing a geospatial approach to the study of legal integration and historical institutionalism more broadly, the authors leverage an original geocoded data set of cases referred to the European Court of Justice by national courts to visualize how the subnational penetration of Europe's supranational legal order is conditioned by state institutions.

2017

L’articolo inizia definendo l’approccio “sociologico” vis-a-vis la prassi del diritto Europeo, sottolineando l’importanza di analizzare l’intrecciamento tra economia locale, avvocatura, e magistratura. In questo ambito verranno condivise alcune conclusioni preliminari di un progetto di ricerca in corso sull’utilizzo del rinvio pregiudiziale in Italia, finanziata dalla National Science Foundation del governo degli Stati Uniti. Integrando dati sia quantitativi – i quali comprendono tutti i rinvii pregiudiziali Italiani dal 1964 al 2013 – che dati qualitativi – tratti da oltre 180 interviste con avvocati e magistrati – verra’ sottolineato (1) il condizionamento importante (ma non deterministico) dell’economia locale sulla penetrazione del diritto Europeo nel contenzioso, ed (2) il ruolo trainante dell’avvocato Europeista, soprattutto nel passato, nel sottolineare l’applicabilita’ delle norme Europee (e nel sollecitare l’utilizzo del rinvio pregiudiziale) sia nei confronti del cliente che nelle sue interazioni con i magistrati. Per illustrare queste conclusioni generali attraverso un caso concreto, l’articolo conclude svolgendo una breve analisi del piu’ importante rinvio Genovese dal punto di vista sociologico – la causa C-179/90, nota come “Porto di Genova.”

t.pavone_sociologiarinviopregiudizialeitalia.pdf
2016

Can legal mobilization be a source of democratic legitimation for polities lacking alternative sources of popular participation? In this brief article, I evaluate whether participation in the European Union (EU)’s legal order via litigation stands to assuage some of the concerns regarding the EU’s “democratic deficit.” I begin by charting the evolving scope of EU law and suggesting that EU competences now extend far beyond complex economic realms over which we might legitimately delegate authority to an insulated set of technocratic institutions. Consequently, greater popular engagement in the process of EU integration would indeed be desirable. I then suggest that electoral mobilization is unlikely to resolve this problem (at least in the EU), and pivot to ascertaining whether litigation is a more fertile path forward. I suggest that, while formalized engagement with the EU legal order might beneficially contribute greater citizen input over the process of European legal development, this form of legal participation should complement, rather than substitute for, democratic participation. 

t.pavone_democracy_by_lawsuit_constitutional_studies_vol2.pdf
Kelemen, Daniel, and Tommaso Pavone. 2016. “Mapping European Law.” Journal of European Public Policy 23 (8): 1118-1138. Publisher's Version Abstract

This article constitutes the first systematic effort to promote a spatial and a subnational turn in the study of EU legal integration by demonstrating how geospatial methods and the selection of a subnational unit of analysis can improve our understanding of the use of the preliminary reference procedure. We conduct a theory-testing case study leveraging an original dataset of all references submitted by Italian courts from 1964 through 2013 and utilize geographic information systems (GIS) technology to analyze subnational patterns in reference activity. We use these data to evaluate whether several existing hypotheses explain recent subnational variation in reference rates. We uncover several illuminating findings. First, although population levels and domestic litigiousness best explain variation in reference rates, there is evidence that the domestic litigation effect is subnationally heterogeneous. Second, although use of the reference procedure has diffused since the 1960s, subnational reference rates are spatially clustered by issue area.

kelemenpavone_mappingeuropeanlaw_2016.pdf
2012
This thesis explores the challenges that the European Court of Justice (ECJ) faces as its human rights practice continues to grow, along with the ECJ’s strategy to address these difficulties. Human rights adjudication is different from the other forms of judicial review because it directly implicates conflicting normative considerations. This combines with the public salience of human rights cases to render supranational human rights adjudication a potentially controversial and politically explosive undertaking. In response, the ECJ has sought to minimize the threat of backlash to its decisions through majoritarian activism. Majoritarian activism allows the Court to reduce the appearance of supranational activism by portraying itself as merely enforcing and solidifying the status quo rather than advancing it through egotistical self- empowerment. This reduces the likelihood that domestic interest groups, activists, and private litigants interpret a decision as undermining their interests, sheltering the Court from political attacks that could harm its reputation. This minimizes the threat of ‘reverse spillover’ – that is, private litigants no longer invoking EU law and domestic courts no longer referring cases to the Court or upholding its rulings. Further, because majoritarian activism pressures minority practices to accord with those of the majority, the ECJ maintains its ability to promote European integration. In other words, majoritarian activism is functional in light of the unique sets of challenges stemming from the Court’s expanding human rights practice. Yet the normative desirability of this strategy remains questionable, and as the ECJ’s human rights practice expands, the Court will have to balance the positive functionality of majoritarian activism with the normative concerns the strategy invites.