Originally posted on SSRN.

Abstract

Both the European Union and the United States are federal systems. Both divide law-making authority between the central government and the member states. Each has a dual judicial system, consisting of member state courts and central government courts. But the EU and the U.S. approaches to federalism diverge in two important ways. First, unlike the U.S., the EU has no system of lower federal courts. Second, in the U.S., the Supreme Court may review state court rulings that turn on issues of federal law. The European Court of Justice has no power of appellate review over the Member State courts. It resolves issues of EU law by way of “preliminary references,” a procedure by which Member State courts seek answers to specific questions. “Preliminary reference” roughly resembles federal court “certification” to the state courts in the U.S., except that the referral is from state to federal court in the EU version.

This article compares the U.S. and EU approaches to interpretation and enforcement of central government law, in order to make three points. First, the article argues that the preliminary reference approach does not adequately assure the uniformity and effectiveness of EU law. Second, the article draws on the history of judicial federalism in the U.S. to argue against setting up a network of lower EU courts. Third, the article draws on that history to argue that effective enforcement of EU law, as well as the interests of the Member States, would be better served by amending the Eu treaties to authorize ECJ appellate review of Member State court rulings.

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