(4.1) Analyzing legal articles
In the previous classes, we discussed legal scholarship from a variety of different perspectives, but we tended to stay on a more abstract level. In the following weeks, we take the opposite route, and analyze legal articles in detail.
Guidelines for analysis
I tried to put our discussions of the past weeks into a more accessible form, and created a table that describes the different elements that you will usually find in legal articles, which methods are used for each, and what you have to specifically pay attention to. It might look a bit too detailed at first, but I think you’ll quickly get into it once you use it in order to analyze a legal article in practice. Obviously this is only one possible way of analyzing a legal article (it is based on the legal theory that underlies the present course), and other analytical approaches may be possible.
→ Let me know what you think! The table is new (I just wrote it this weekend), so it might not be clear in all aspects, and it might miss certain aspects of scholarly writing. Please comment if you find something unclear, or unhelpful, or otherwise problematic. Likewise it would be nice if you could comment if there is something in the table that you find particularly helpful.
Our first object of analysis
Our first object of analysis is an article I wrote a few years back, which deals with the question whether the case law of the Court of Justice of the European Union (CJEU) in relation to labor law is ideologically biased:
I’ll provide a short overview of what the article is about, and then pose a number of guiding questions that are supposed to lead you through the text, and help you in your analysis.
Guide to the text
As I am not sure where the text is leading to comprehension problems, I provide an extensive explanation — skip the parts you already understand!
Area of law: EU internal market law
The text deals with EU internal market law. The structure of EU internal market law is really, really easy; in fact, it could not be simpler:
- all EU Member States are part of the EU internal market.
- EU internal market law (regulated by the European Treaty as well as secondary European law) grants economic rights to individuals: the free movement of goods (Article 34 TFEU), workers (Article 45 TFEU), services (Article 56 TFEU) and capital (Article 63 TFEU), and the freedom of establishment (Article 49 TFEU).
- They grant individuals the right to trade goods across borders, work abroad, sell their services abroad, invest abroad, and establish themselves abroad.
- More specifically, they grant individuals the right to do so free of obstacles, unless such obstacle is based on a regulatory objective that is justified and which is proportional.
- Individuals can invoke this right in courts against national regulation that restrict their economic freedom.
- Thus, internal market law always leads to the following conflict: individual economic rights on the one hand, national regulation on the other. If the national regulation pursues a useful regulatory objective and is proportional, it will be justified. The key element of internal market law adjudication is thus the proportionality (or balancing) test. → thus, from a doctrinal perspective, internal market law adjudication looks works exactly like fundamental rights adjudication.
The political background of the article and the cases
Over the past decades, many people have argued that the EU is neoliberal. In particular, internal market law has found to have a significant deregulatory effect: individuals can mobilize it against virtually any type of national regulation (including environmental, social, tax, etc.) — because any regulation, at least potentially, restricts their economic rights. The cases mentioned in the text (Rüffert, Viking, Laval) all deal with aspects of internal market law colliding with national labor law. In all of the cases, the CJEU finds that national labor law is restricting the economic rights of companies. This confirmed the view of many — the Court was found to privilege the interest of companies acting across borders over the interests of workers. The article refers specifically to the Viking (2009) judgment, and describes the facts as follows:
“The facts of the Viking case are well known: the Viking Lines, a ferry service from Helsinki to Tallinn, attempted to reflag their ship, the Rosella, to Estonia in order to access lower wages. The Finnish labor union, supported by the international transport workers federation (ITF) and the Estonian labor union attempted to block the relocation, and initiated industrial action (i.e., strikes). The Court ruled that industrial action that is liable to block relocation is a non-justifiable restriction of the market freedoms.” (p 66)
It is thus commonly argued that the CJEU is neoliberal, or its case law is neoliberal. ( → p 56)
What is the cause of the CJEU’s neoliberal bias?
- Some people say that it’s “judicial activism”, which means that judges venture beyond “what they are supposed to do”, and make politics from the bench.
- Other people (like Scharpf, who I cite on p 57) argue that the legal-institutional system is structurally biased in favor of neoliberal outcomes.
→ now you know as much as the “regular” internal market law scholar, to whom the article is addressed.
- My argument is that neither of the two are true. Instead, I argue that internal market law is open, and can be applied by the CJEU either in ways that facilitate neoliberal outcomes, or in other ways. The reason why the CJEU applies internal market in a biased form is because the judges unconsciously decide on the cases on the basis of a biased economic view (i.e., neoclassical economic theory). In other words, they mistake a biased economic view for the truth.
→ the question that is for you to answer is: how do I try to do that in the article?
Guiding questions
Try to answer the general guiding questions. If you feel unable to do it, please consult the more detailed guiding questions below.
General guiding questions
Here are some guidelines how you could analyze the text:
- First, answer the following, general questions:
- What do I try to achieve in this article, what is my objective?
- How do I pursue this objective?
- What is the research question(s) of the article, if there is one?
- Is this text an example of “critical legal scholarship” or not? Why?
2. Then try to identify the specific types of reasoning, analysis or argumentation that I have collected on the table. Which of them do you encounter, which ones are not employed in the article? Are there parts of the text that do not seem to fit into any of the categories of the table? → Also, are there any categories missing in the table?
3. Finally — and this is my new challenge for you — try to be as critical as possible about the article from a methodical and argumentative perspective. What are its logical and methodical shortcomings? Try to be brutal, but also precise — then the learning effect of this exercise will be optimal.
Detailed guiding questions
This section is for those people who struggle with the article even after the explanations above. → first, read the conclusion (you should always read the intro and the conclusion first). Then, please follow the guideline through each page.
p 56
- what does the Left accuse the EU of?
- What does the Left accuse the CJEU of?
- what is judicial activism?
- How would judicial activism explain the neoliberal bias of the CJEU?
p 57
- Can the individual political views of the CJEU judges be established?
- How do people like Scharpf explain the neoliberal bias of the CJEU?
- What is the study cited in Fn 4 about? (Google, if necessary)
p 58
- What is the paper’s thesis? What do I claim is the cause for the CJEU’s neoliberal bias? (read the sentence that starts in line 6)
- What has the CJEU, according to the article, not yet achieved?
p 59
- which instrument (or test) does the CJEU apply in internal market law?
- Why does balancing a right vs another regulatory interest require a “metatheory”? (how do you compare apples with oranges? only if you find a common denominator, e.g. weight. the same applies in a proportionality test)
- how is the proportionality test commonly conceptualized in internal market law?
- is it ok to equate the exercise of individual economic rights with economic growth as such? Why not?
p 60
- which economic school thinks that the economic and the social sphere are distinct?
- Which economic schools believe that economic and social issues should not be distinguished?
- if neoclassical economics operates with the analytical pair economic-vs-social, and EU law scholars analyze internal market law under the same perspective — is that ok or not?
- does this mean that EU law scholars (consciously or unconsciously) project a specific ideological view onto internal market law?
- Is it ok that EU law scholars equate internal market law with the neoclassical economic view?
- Which other economic view exists?
- Does the EU Treaties give preference to either neoclassical or Keynesian theory?
- Which Treaty provision do I refer to in order to support my claim?
p 61
- is it, therefore, acceptable that the CJEU decides internal market law cases on the basis of a neoclassical economic view alone?
- Would the outcome of cases be different if the CJEU applied the proportionality test on the basis of e.g. a Keynesian economic view?
- Why do I cite the OECD?
- On which issues to Keynesians and neoclassical scholars disagree?
p 62
- According to neoclassical scholars, which societal institution is most successful in achieving growth?
- Is distributive equality a central concern of neoclassical scholars or not?
- Is distributive equality relevant for Keynesians?
- Why?
p 63
- who believes that innovation and institutions (e.g. a good judicial system, schools, a good relation between labor unions and employers, a good social system) are important for growth?
- Why would judges who believe the neoclassical view decide internal market law cases differently than judges who believe the Keynesian view?
p 64
- how do economists disagree regarding economic integration?
- according to neoclassical scholars, will market integration automatically lead the different regions to converge? (i.e., to develop the same living standards?)
- according to NTT scholars, will market integration automatically lead to convergence?
p 65
- Why would judges applying a neoclassical view decide internal market law cases differently than judges who apply an NTT view?
- Does the CJEU ALWAYS ignore the existence of competing economic views?
- However, what is the CJEU still lacking?
p 66
- why does the Viking decision only make sense if one assumes that the court applied a neoclassical view?
- what is an Advocate General (AG) of the CJEU?
- how would a Keynesian or NTT view change the outcomes of the proportionality balancing in Viking?
p 67
- Is it acceptable that the Court and AG Maduro apply the proportionality test on the basis of exclusively neoclassical economic views?
- Why not?
- does the CJEU CONSCIOUSLY choose to follow a neoclassical economic view?
p 68
- why does the CJEU nonetheless follow a neoclassical view, despite the fact that it did not choose it consciously?
- what is the “conventional wisdom trap”?
- what happens when lawyers pick up economic arguments?
- can economic knowledge simply be transferred into legal discourse?
- how do lawyers operate with economic knowledge in legal discourse?
p 69
- why does the CJEU, according to me, have to actively try to include different economic views into its reasoning?
- what is the neoclassical rule of thumb in internal market law discourse?
p 70
- why do other economists disagree with this view?
- why should we find a simple rule of thumb for heterodox economic views in law?
- what is the heterodox rule of thumb that i propose?
p 71
- how does the Viking judgment shift market power between labor and capital?
p 72
- how does the freedom to relocate strengthen the employers’ bargaining power?
p 73
- does the neoclassical view — i.e., that increasing company mobility is always economically beneficial — correct?
- Why do I cite a study by the European Commission?
- is the Viking judgment and its negative effect on labor unions justified in the light of economic considerations? Will it lead to more growth?
p 74
- why do implicit economic assumptions embraced by the CJEU make a difference in the application of the proportionality test?
