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EU research scholars Samo Bardutzky and Elaine Fahey collaborated recently on an Emerging Scholarship symposium.

Research Scholars Study Caselaw-in-the-Making as EU Battles Financial Crisis

By Jenny Whalen
May 31, 2013

These are landmark times in the legal system of the European Union, Michigan Law research scholars Samo Bardutzky and Elaine Fahey say.

Beset by questions of national sovereignty amid a worsening financial crisis, EU courts are hearing cases and issuing judgments that the pair suspect will influence legal theory for decades to come.

"The notions of what is national and international are changing," said Bardutzky, a Fulbright grantee who hails from the University of Ljubljana in Slovenia. "This impacts how Europe integrates and becomes more of an entity. These are heady times."

Postdoctoral researchers sponsored this past year by Daniel Halberstam, Eric Stein Collegiate Professor of Law, Bardutzky and Fahey found a shared interest in theories of constitutionalism and what both perceive to be a "crisis of postnationalism" as Member States manipulate Eurozone law in an effort to battle the financial crisis and solve the complex relationship between the Euro, the Member States and the EU.

"I feel we are a point where existing integration in the EU is simply not enough, it's inadequate," said Fahey, a senior postdoctoral researcher at the Amsterdam Centre for European Law and Governance at the University of Amsterdam in The Netherlands. "It is deeply troubling but also academically fascinating to see a postnational democracy adopt so many practices and instruments so quickly in order to integrate further."

The opportunity to view the issue from a new perspective, combined with Michigan Law resources, and the ability to collaborate with other scholars proved invaluable to the pair's research.

"In even greater synergy, we began to talk with the Michigan Journal of International Law (MJIL)," Bardutzky added. "They embraced the research and we've prepared an Emerging Scholarship symposium—a succint collection of five texts written by scholars that deal with the topic."

In addition to contributions from both scholars, the collection will include a speech given by Court of Justice Advocate General Juliane Kokott, who visited the School earlier this year.

"When we approached her to tell her about the symposium, she offered to publish a speech of hers," Bardutzky said. "It's really superb that someone who is established in Europe, and holds the posture and rank of a Supreme Court Justice, would come to Michigan and be willing to work with research scholars and a student journal, and publish a fascinating background piece on one of the leading cases of her career."

The works were published in June as "European Integration Through Law: Judicial Review of the Eurozone Crisis in European National, Regional and Supranational Courts" in a MJIL online symposium.

"We consider the character of Eurozone law, specifically its postnational characteristics, as an area on the margins of EU institutional law," Fahey said. "We use the casestudy of the European Stability Mechanism as it was the intended to be the most permanent of all the reforms that the EU has introduced. But it was established outside the EU treaties using public international law for the time being and so its characterization in law, its operation and funding are extremely important to assess."

Their research examines review of the mechanism by select Member State courts, tribunals, parliaments, and the Court of Justice as failed opportunities for judicial review and participation.

And while the research only scratches the surface of what will continue to be the intricate development of a postnational legal system, Bardutzky said he hopes it does prompt discussion of what the pair argue has been "suboptimal judicial dialogue" to date.

"A lot of established concepts and mechanisms are being put to the test," he added. "What I'm trying to answer with Elaine is if the current judicial structure is capable of providing what we usually expect of it. Will the relationships between Member States be successful when the structure becomes even a degree more complex?"

Bardutzky said he expects the answer to this question will influence EU public law in the decades ahead.

"We're not studying case law that was established 50 years ago," he added. "These are landmark times and people are trying to conceptualize what is happening. Time will show who was right."

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