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Judicial lawmaking and precedent in Supreme Courts

Komárek, Jan (2011) Judicial lawmaking and precedent in Supreme Courts. LSE law, society and economy working papers, 04-2011. Department of Law, London School of Economics and Political Science, London, UK.

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Abstract

What does it mean for a supreme court to ‘make law?’ When is it possible to say that its decisions are ‘precedents?’ To what extent should a supreme court’s pronouncements be taken into account by others – lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice’s case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for an account of the Court’s lawmaking and precedent. The conclusion indicates directions of possible further research relevant for all courts examined.

Item Type: Monograph (Working Paper)
Official URL: http://www.lse.ac.uk/collections/law/wps/index.htm
Additional Information: © 2011 The Author
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > European Institute
Departments > Law
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Identification Number: 04-2011
Date Deposited: 27 Sep 2011 14:15
URL: http://eprints.lse.ac.uk/38468/

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