Setting the Bar
Professors George A. Bermann '75 LL.M. and Sarah H. Cleveland recently joined five supreme court justices for a pathbreaking judicial journey
When several current and retired Supreme Court justices made the transatlantic voyage from the U.S. to Luxembourg a few months ago in order to convene with judges from the European Court of Justice, a select group of hand-picked scholars were on-site to greet the distinguished jurists. Among those selected to help facilitate discussions between members of both the U.S. and European Union’s highest courts were Columbia Law School Professors George A. Bermann ’75 LL.M. and Sarah H. Cleveland, as well as Adjunct Professor Harold Hongju Koh.
The professors served as part of an elite six-person academic team chosen to help frame dialogue occurring under the auspices of the newly created Luxembourg Forum, a first-of-its-kind conference that aims to increase communication and mutual understanding between members of the two courts. Bermann, the Law School’s Jean Monnet professor of EU Law and Walter Gellhorn Professor of Law, served as head of the forum’s academic group.
“Both courts oversee systems of divided legal authority,” says Cleveland, the Law School’s Louis Henkin Professor of Human and Constitutional Rights. “The basic idea was to explore the ways in which the two courts confront similar challenges, the ways in which they apply similar or different solutions, and what they can learn from each other.”
The February meeting in Luxembourg—which is home to the 28-member European Court of Justice—served as the group’s first full, official session. Five Supreme Court justices—Chief Justice John G. Roberts, Jr., Ruth Bader Ginsburg ’59, Stephen G. Breyer, Samuel A. Alito, Jr., and Sandra Day O’Connor, who left the Court in 2006—flew to Europe to join the discussions. European Court of Justice President Vassilios Skouris, the court’s vice president, Koen Lenaerts, and U.S. Ambassador to Luxembourg Robert Mandell helped organize and host the four-day event, which was attended by more than two dozen European judges and advocates general.
During the conference, participants examined the similarities and differences between the two judicial bodies, bearing in mind how increased globalization has created the need for a better understanding of other countries’ legal systems. “This was an exercise in pure comparative law in action and in context,” says Bermann, who currently serves as president of the International Academy of Comparative Law and as co-director of Columbia Law School’s European Legal Studies Center.
Discussion centered on how U.S. courts approach conflicts between the states and the federal government, versus how European courts address issues between the EU and its member states. The judges exchanged their views on procedural issues, including standards of review and docket management.
The conference also offered an opportunity for the American jurists and academics to sit in on a case being argued before the European Court of Justice. Prior to oral arguments, forum participants received a detailed briefing on the case, which involved the licensing of lawyers by member states, and its implications for EU law. Afterward, members of the Court of Justice answered questions from the guests.
With the inaugural Luxembourg Forum concluded, Cleveland spoke enthusiastically about the prospects for future meetings. She says members of the forum hope to convene more regularly—perhaps every few years—for ongoing discussions that could benefit all involved.
“It’s important for each of the courts to have a basic understanding of the function, operation, and jurisprudence of the other court,” Cleveland says. “The world is sufficiently integrated now that the U.S. Supreme Court can hear issues that at least tangentially involve matters of EU law, and the U.S. Supreme Court has always prided itself on being a court that other countries and other courts cite.”