Suchergebnisse

Abstract.  While scholars today are well‐acquainted with how the European Community preliminary reference process works, little research has been done to investigate strategic court interaction – that is, intentional, procedural court behaviour employed to influence the substantive direction of legal evolution, within that process. The present investigation, which is part of a larger project examining such court behaviour throughout the referral process, focuses on the initial stage: the decision to refer. Within that stage lies the opportunity for national courts to stack the interpretive deck for the entire decision‐making process via a preemptive opinion, the submission of which is neither required, suggested nor prohibited by written procedural guidelines. It is assumed that courts are strategic institutions that seek to maximize their policy objectives, and therefore, national courts submit preemptive opinions to obtain that goal. Such strategic behaviour, however, is influenced by intervening factors – namely the acceptance of European Court of Justice intervention, national judicial procedure, issue complexity and individual court experience.

Litigant desistment, i.e. voluntary litigant implementation of an ECJ ruling in a preliminary reference case that preempts the necessity for a national court decision, is a common - yet often overlooked - strategic behavior new to the study of the ECJ, national courts and the preliminary reference process. The hypotheses directed at predicting and investigating when such litigant behavior occurs are an outgrowth of the 'implementation prejudice' that national courts will overwhelmingly apply ECJ decisions in their rulings, which changes the opportunity structures of litigants. Understanding when litigants desist not only expands general knowledge concerning the underinvestigated implementation stage but also arguably could have important implications for our understanding of the evolution of 'high' court legitimacy.

Although questions of political obligation have been much discussed by scholars, little attention has been paid to moral reasons advanced by actual states to justify the compliance of their subjects. We examine the `self-image of the state' through Supreme Court decisions in the USA, Germany, and Israel. Because moral reasons are expressed especially clearly in cases regarding obligations to provide military service, we focus on these. In spite of their important constitutional and judicial differences, the three states support military obligations along similar lines, though with some differences. In all three countries, appeal is made to obligations of reciprocity. Individuals must serve in order to provide the important benefit of defense. This `service conception' of political obligation accords norms of fairness or equality a central role, in order to justify the service of particular individuals. Reasons for less emphasis on fairness in Israeli cases are examined, while we claim that the overall similarities of the three countries provide some measure of indirect support to a theory of political obligation based on the principle of fairness.

Although questions of political obligation have been much discussed by scholars, little attention has been paid to moral reasons advanced by actual states to justify the compliance of their subjects. We examine the 'self-image of the state' through Supreme Court decisions in the USA, Germany, & Israel. Because moral reasons are expressed especially clearly in cases regarding obligations to provide military service, we focus on these. In spite of their important constitutional & judicial differences, the three states support military obligations along similar lines, though with some differences. In all three countries, appeal is made to obligations of reciprocity. Individuals must serve in order to provide the important benefit of defense. This 'service conception' of political obligation accords norms of fairness or equality a central role, in order to justify the service of particular individuals. Reasons for less emphasis on fairness in Israeli cases are examined, while we claim that the overall similarities of the three countries provide some measure of indirect support to a theory of political obligation based on the principle of fairness. 1 Appendix. [Copyright 2003 Sage Publications, Ltd.]