Transatlanticisms: Constitutional Asymmetry and Selective Receptions of U.S. Law and Economics in the Formation of European Private Law
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Cardozo Journal of International and Comparative Law (JICL), Vol. 16, No. 1, pp. 101-161, 2008
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- European Union; Constitutional asymmetry; European private law; law and economics; International Law; Law; constitutional asymmetry
The recurrent claim made by judges, scholars, and lawyers shaping the debate on European private law is that there is a constitutional asymmetry in the European Union (EU). The asymmetry lies in the fact that European Community competences mostly encompass market and economic matters at the expense of social issues, while Member States have full jurisdiction over social matters but only limited jurisdiction over economic matters. Thus, the European constitutional structure leads to a market/technocratic orientation in its supranational institutions, as opposed to the social/political orientation of Member State governments. The pervasiveness of this claim allows jurists critiquing European adjudication from both the Right and the Left to systematically claim that the European Court of Justice lacks democratic legitimacy to adjudicate particular cases on European contract or torts rules. Recently, European scholars, lawyers, and judges have departed from constitutional asymmetry claims. This article demonstrates that there are several factors that have played an important role in undermining the credibility of the constitutional asymmetry claim. First, the emergence of a well-established scholarship in European private law has raised awareness among academics and lawyers regarding the complexities of the process of harmonization of private law. Second, in light of a transatlantic legal dialogue, European jurists have increasingly received law and economics from the United States in a context that has been hermeneutically rich but increasingly ideologically divided. While the Right and mostly neoliberal scholars welcomed United States law and economics, the Left rejected it and promoted a social justice agenda for the internal market. Such selective reception of U.S. legal thought contributed to the radicalization of the debate over European private law. Ultimately, with the establishment of a European private law scholarship and the emergence of new academic debates, which are increasingly ideologically divided, lawyers and scholars are frequently departing from constitutional asymmetry claims; instead, they are evaluating the consequences the European Court of Justice’s decisions on their own terms.