Nature or nurture? Judicial lawmaking in the european court of justice and the Andean Tribunal of justice

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2010-09-01

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Abstract

Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts' authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ's jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This comparison of two structurally identical international courts calls into question prevailing explanations of ECJ lawmaking, and it suggests that prevailing scholarship puts too much emphasis on the self-interested power-seeking of judges, the importance of institutional design features, and the preferences of governments to explain lawmaking by international courts. © 2010 The IO Foundation.

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10.1017/S0020818310000238

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Helfer, L, and K Alter (2010). Nature or nurture? Judicial lawmaking in the european court of justice and the Andean Tribunal of justice. International Organization, 64(4). pp. 563–592. 10.1017/S0020818310000238 Retrieved from https://hdl.handle.net/10161/3973.

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Helfer

Laurence R. Helfer

Harry R. Chadwick, Sr. Distinguished Professor of Law

Laurence R. Helfer is an expert in the areas of international law and institutions, international adjudication and dispute settlement, human rights (including LGBT rights), and international intellectual property law and policy. He is co-director of Duke Law's Center for International and Comparative Law and also serves as a Permanent Visiting Professor at the iCourts: Center of Excellence for International Courts at the University of Copenhagen, which awarded him an honorary doctorate in 2014.

Helfer was nominated by the United States as a candidate for the UN Human Rights Committee.  He was elected by the states parties to the International Covenant on Civil and Political Rights in 2022 and is serving as a member of the Committee from 2023 to 2026. He recently completed a four-year term as co-Editor-in-Chief of the American Journal of International Law.

Prior to joining the Duke Law faculty in 2009, Helfer was a professor of law and director of the International Legal Studies Program at Vanderbilt University Law School. He has also taught at Harvard Law School, Loyola Law School in Los Angeles, Princeton University, the University of Chicago Law School, and the University of Toronto Faculty of Law.

Helfer has authored more than 100 publications and has lectured widely on his diverse research interests. He is the coauthor of Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017); The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals (Oxford University Press, 2017); Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge University Press, 2011) and Human Rights (2d ed., Foundation Press, 2009). He has also published International Court Authority (Oxford University Press, 2018) (co-editor); Intellectual Property and Human Rights (Edward Elgar, 2013) (editor), and a monograph, Intellectual Property Rights in Plant Varieties: International Legal Regimes and Policy Options for National Governments (2004), with the U.N. Food and Agriculture Organization. His articles have appeared in leading American law reviews, including the Yale Law Journal, the Columbia Law Review, the California Law Review, the Virginia Law Review, the University of Pennsylvania Law Review, and Law and Contemporary Problems, as well as in numerous peer-reviewed political science and international law journals, such as International Organization.

Helfer holds a JD from New York University, where he graduated Order of the Coif and was articles editor of the New York University Law Review. He also holds an MPA from Princeton University, where he was a Woodrow Wilson Fellow, and a BA from Yale University. He served as a law clerk to Chief Judge Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit. Before beginning his academic career, Helfer practiced with the New York law firm of Rabinowitz, Boudin, Standard, Krinksy & Lieberman, P.C., focusing on international law, intellectual property litigation, and civil liberties.


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