International Organization

Research Article

Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice

Karen J. Altera1 and Laurence R. Helfera2

a1 Northwestern University, Evanston, Illinois. E-mail: kalter@northwestern.edu

a2 Duke University School of Law, Durham, North Carolina. E-mail: helfer@law.duke.edu

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.

Karen J. Alter is Professor of Political Science at Northwestern University, Evanston, Illinois. E-mail: kalter@northwestern.edu

Laurence R. Helfer is Harry R. Chadwick, Sr., Professor of Law at Duke University School of Law, Durham, North Carolina. E-mail: helfer@law.duke.edu

Footnotes

We are grateful for financial support from the Center for the Americas at Vanderbilt and the Northwestern Dispute Resolution Research Center, which funded research assistance and field research in Quito, Lima, and Bogota. For helpful comments on previous drafts, we thank David Art, David Boyd, Dan Brinks, Darren Hawkins, Tom Ginsburg, Cesare Romano, Osvaldo Saldias, and Alexander Krasteve Panayotov, and the reviewers and editors at IO. Thanks also to Gilda Anahi Gutierrez, Elena Herrero-Beaumont, Maria Florencia Guerzovich, and Ryan Mellske, who provided superb research assistance.