The Steadying Effect of Argument before the Court of Justice

Abstract

This chapter considers the utility of argument, both written and oral, before the Court of Justice in the preliminary reference procedure to reckonability of outcome. The chapter commences with a brief discussion of Karl Llewellyn's ninth steadying factor, 'adversary argument by counsel', with which Llewellyn posited that the lines of argument presented to an appellate court in written and oral pleadings may serve to further focus and narrow the lines within which the court will make its ruling. The rest of the chapter considers the applicability of this steadying factor in the context of the preliminary reference procedure, taking account of some key differences that exist between the practice and procedure before the Court of Justice in a preliminary reference and that of a common law appellate court.