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Are the Judges of the Court of Justice of the European Union 'Law-Conditioned Officials'?

John Cotter

In 1960, Karl Llewellyn, an American Legal Realist, wrote The Common Law Tradition (Boston: Little Brown), a book in which he argued that the decisions of US appellate courts are reckonable, in that a skilled lawyer could average correct prediction of outcomes eight times out of ten. Llewellyn attributed this reckonability to fourteen steadying factors, the first of which is the fact that the judges of the American appellate courts are "law-conditioned officials". Llewellyn suggested that the common educational, professional and social backgrounds of the judges create a relatively uniform decision-maker, which in turn contributes to more uniform decisions.This paper, which will examine the question of whether the judges of the ECJ can be considered "law-conditioned officials", is part of a greater project which seeks to apply Llewellyn's steadying factors to the ECJ in order to determine whether its preliminary rulings are reckonable. The paper will describe Llewellyn's concept of a "law-conditioned official" before considering the impact of common legal educational, professional and social judicial backgrounds on court decisions generally. The paper will then examine the backgrounds of the former and present members of the ECJ and determine whether they may be described as "law-conditioned officials".

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