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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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The Sliding Scales

The Sliding Scales

(p.241) 8 The Sliding Scales
Judicial Deliberations

Mitchel de S.-O.-l’E. Lasser

Oxford University Press

This chapter analyses the Cour de cassation of France, the Supreme Court of the United States, and the European Court of Justice based on a couple of clear and concise comparative theses. These theses place the judicial argumentation of the three courts on sliding scales of greater or lesser interpretive formality or open-endedness, and of greater or lesser public disclosure of their controlling arguments and reasoning. Somewhere between the formalism of the official French judicial syllogism and the more pragmatic, open-ended, and purpose/policy oriented American judicial opinions are to be found the official judicial decisions of the ECJ. It seems to make more sense to classify ECJ decisions as more formalist than U.S. Supreme Court decisions, and this for one primary reason. Despite the fact that divisive interpretive disagreement lies visible on or just below the surface of the ECJ decision, the ECJ's response to that disagreement remains perfectly univocal and rather deductive in form, and distinctly magisterial and authoritative in tone.

Keywords:   Cour de cassation, France, Supreme Court, United States, European Court of Justice, judicial argumentation, judicial syllogism, judicial decisions, judicial opinions

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