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Judicial DeliberationsA Comparative Analysis of Transparency and Legitimacy$
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Mitchel de S.-O.-l'E. Lasser

Print publication date: 2009

Print ISBN-13: 9780199575169

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199575169.001.0001

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Similarity and Difference

Similarity and Difference

(p.145) 5 Similarity and Difference
Judicial Deliberations

Mitchel de S.-O.-l’E. Lasser

Oxford University Press

This chapter looks at the underlying similarities and differences in judicial argumentation between the Cour de cassation of France, the United States Supreme Court, and the European Court of Justice (ECJ). What characterises the French and ECJ judicial systems is not their formalism, but their respective bifurcation into two relatively distinct discursive spheres. For both courts, the official judicial decisions constitute magisterial discursive spheres in which the courts write collegially and offer relatively deductive forms of argument and reasoning. For both courts, conversely, the Report of the Reporting Judges and the Conclusions/Opinions of the Advocates General constitute relatively unceremonious discursive spheres in which the judicial magistrates write individually and offer relatively non-deductive and purposive forms of argument and reasoning. This chapter also looks at traditional American accounts of French civil law and American common law difference.

Keywords:   judicial argumentation, Cour de cassation, France, United States, Supreme Court, European Court of Justice, judicial decisions, magistrates, civil law, common law

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