The Ghostwriters: Lawyers and the Politics Behind the Judicial Construction of Europe

Abstract

This dissertation addresses the puzzle of how the European Union (EU) became "nowhere as real as in the field of law" in the shadow of two world wars and against the early expectations of most statesmen. Developing a new theory of political development through law, I argue that domestic lawyers played an essential role in advancing European integration by encouraging deliberate law-breaking and mobilizing national courts against their own governments.

I thus challenge the conventional wisdom that national judges have been the leading "motors" of European integration within member states, eager to invoke EU law and refer cases of noncompliance to the European Court of Justice (ECJ). Constrained by excessive workloads, lackluster training in EU law, and national judicial hierarchies, I find that on their own, judges have generally resisted Europeanization. The primary catalysts of change were instead a small group of idealistic "Euro-lawyers" facing fewer bureaucratic shackles. Under the sheepskin of rights-conscious litigants and activist courts, they sought clients willing to break national laws conflicting with EU law, educated judges about the duty and benefits of upholding EU rules, and cajoled them into soliciting the ECJ by ghostwriting their referrals.

This repertoire of Euro-lawyering produced an uneven legacy, becoming primarily entrenched in wealthier client markets where it was instrumentalized to serve the interests of corporate lawyers and businesses. And as European integration becomes increasingly contested and politicized, Euro-lawyers must supplement the behind-the-scenes ghostwriting of lawsuits with vigorous public engagement to overcome societal resistances to compliance.

I evaluate these claims through a tripartite framework integrating the satellite view of the transnational using geospatial methods, the granular view of the subnational using 15 months of fieldwork in Italy, France, and Germany, and the temporal view of the past using novel archival evidence. Spatial analyses of a dataset of court referrals to the ECJ are leveraged to reveal "hot spots" and "cold spots" in the judicial enforcement of EU law. Semi-structured interviews are interpreted to compare why judges resisted Europeanization in some places and how lawyers overcame these resistances elsewhere. Finally, previously classified court documents are used to retrace lawyers' litigation strategies.