R. Daniel Kelemen

• Ph.D. Stanford University
• Professor at Rutgers, The State University of New Jersey

As a wave of backsliding has swept across both new and established democracies, scholars have sought to identify formal and informal institutions that can act as guardrails of democracy. But while informal norms, party structures, and formal institutions such as separation of powers have all been singled out as potential bulwarks against democratic...

Why would a supranational law enforcer suddenly refrain from wielding its powers? The authors theorize the supranational politics of forbearance—the deliberate underenforcement of the law—and explain how they arise from cross-pressures between prosecutorial discretion and intergovernmental policy-making. The article then traces why an exemplary sup...

This article dismantles the myth that the EU’s failure to respond adequately to the rise of autocratic member governments has been due to its lack of adequate tools. The EU has used this excuse repeatedly to justify engaging in what Laurent Pech calls a new instrument creation cycle – reacting to attacks on democracy and the rule of law not by depl...

In writing ‘State-building and the European Union’ we hoped to open up a conversation. We are gratified at how the thoughtful contributions of the Debate Section participants usefully push the debate forward. We stress that our story of state-building and the EU is about contingent causal processes within specific cases, not universal laws. This al...

Why would a supranational law enforcer suddenly refrain from wielding its powers? We theorize the supranational politics of forbearance– the deliberate under-enforcement of the law– and distinguish them from domestic forbearance. We explain why an exemplary supranational enforcer– the European Commission– became reluctant to launch infringements ag...

The European Union’s institutional development is highly imbalanced. It has established robust legal authority and institutions, but it remains weak or impotent in terms of its centralization of fiscal, administrative, and coercive capacity. We argue that situating the EU in terms of the history of state-building allows us to better understand the...

This epilogue to the special issue of the Swiss Political Science Review on “Democratic Challenges of Differentiated (Dis)Integration” raises some notes of caution about differentiated integration in the European Union (EU). While the articles in this special issue identify challenges concerning differentiated integration, they generally view it in...

While the European Union (EU) professes a commitment to liberal democracy, in recent years it has allowed some member governments to backslide toward competitive authoritarianism. The EU has become trapped in an ‘authoritarian equilibrium’ underpinned by three factors. First, the EU's half-baked system of party politics and its ingrained reluctance...

This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use o...

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domes...

The European Union (EU) is a community based on the rule of law. EU member states have committed themselves to uphold the rule of law and to respect the primacy of EU law. Yet today, the EU legal order is threatened by the emergence of increasingly autocratic member state governments, particularly those in Hungary and Poland, who routinely violate...

This book takes a wide-ranging approach to tackle the complex question of the current state of constitutional democracy in the EU. It brings together a broad set of academics and practitioners with legal and political perspectives to focus on both topical and perennial issues concerning constitutional democracy (including safeguarding the rule of l...

Theories of federalism can provide a set of assumptions, concepts, and arguments that shed light on many aspects of European integration. Applying the federalism perspective opens up EU scholars to a range of relevant comparative cases that provide analytic leverage and insight on the EU. This perspective also enables EU scholars to draw on and con...

How are processes of political development structured across space and time by preexisting institutions? This article develops a spatiotemporal theory of institutional change by analyzing the evolving infrastructural power of the European Union's legal order using geospatial methods. Specifically, the authors theorize that the pattern and pace of t...

This article responds to Michael Blauberger and Berthold Rittberger's article “Conceptualizing and theorizing EU regulatory networks,” published in Regulation & Governance in 2015. Blauberger and Rittberger challenged our previous work on the politics of Eurocracy, disputing our argument that political considerations, not functional ones, explain t...

This chapter examines why European Union agencies have been created and what impact they are having on European governance. It begins with a discussion of theories that explain law-makersʼ design choices and the increasing popularity of European agencies, focusing on delegation and policy credibility, the politics of agency design, and legal obstac...

This article argues for a radical recasting of the European Union democratic deficit debate. Critics have long argued that the EU suffers from a democratic deficit and that growing EU power undermines national democracy. But recent backsliding on democracy and the rule of law in Hungary and Poland reminds us that grave democratic deficits can also...

Today, the European Union (EU) is confronting a new democratic deficit at the national level. A number of EU member states have experienced an erosion of democracy and the rule of law in recent years, most severely in Hungary and Poland. Drawing on different strands of political science research, the contributions to this section debate the strengt...

This article explores the potential efficacy and limitations of judicial mechanisms as tools to combat democratic backsliding in European Union (EU) member states. The article argues that more can be done to maximize the effectiveness of existing judicial tools, such as infringement proceedings brought to the European Court of Justice (ECJ) by the...

Why has the European Union been able to craft a unified sanctions policy against Russia but failed to rein in Russia's ‘Trojan horses’ within the EU that pursue pro-Putin foreign policies? We argue that the EU suffers from a specific type of disaggregation in its foreign and security policy. While the EU's Common Foreign and Security Policy has inc...

This article constitutes the first systematic effort to promote a spatial and a subnational turn in the study of EU legal integration by demonstrating how geospatial methods and the selection of a subnational unit of analysis can improve our understanding of the use of the preliminary reference procedure. We conduct a theory-testing case study leve...

This book explores one of the central challenges facing the EU today - how to reconcile enlargement with the pursuit of a stronger and more effective European Union. While the relationship between widening and deepening has been recognized for years as one of the big questions in the field of European integration, existing theoretical and empirical...

This contribution presents an institutionalist account of the conditions under which widening either impedes or encourages deepening. We argue that the impact of widening on deepening depends on the position of the enlargement state relative to the preference distributions of existing member states. Also, we argue that while expanding to a laggard...

ABSTRACT For years, the Court of Justice of the European Union (Court of Justice) and national constitutional courts – particularly the German Federal Constitutional Court (Bundesverfassungsgericht; FCC) – have engaged in what developmental psychologists might term ‘parallel play’. Th e courts have played alongside each other, but not with each oth...

The European Union (EU) project of combining a single market with a common currency was incomplete from its inception. This article shows that the incompleteness of the governance architecture of Europe’s Economic and Monetary Union (EMU) was both a cause of the euro crisis and a characteristic pattern of the policy responses to the crisis. We...

In recent years, the United States has lagged behind the European Union in its ratification and implementation of major multilateral environmental agreements (MEAs). The development represents something of a role reversal between the US and the EU, given that the US had previously acted as the primary driver behind the adoption of most MEAs since t...

In response to the Eurozone crisis, European Union leaders have undertaken a number of dramatic reforms, including the imposition of a new regime for fiscal governance of Eurozone Member States. The 2012 Fiscal Compact Treaty, one of the lynchpins of this package of reforms, requires states to incorporate judicially enforceable balanced-budget rule...

While the relationship between widening and deepening is a central concern of many EU scholars, most analysis of this relationship remains ad hoc and atheoretical. This paper presents an institutionalist account of the conditions under which widening either impedes or encourages deepening. We argue that the impact of widening on deepening depends o...

Many studies suggest that strict balanced budget rules can restrain sovereign debt and lower sovereign borrowing costs, even if those rules are never enforced in court. Why might public officials adhere to a rule that is practically never enforced in court? Existing literature points to a legal deterrence logic in which the threat of judicial enfor...

Germany's highest court stopped short of ruling the European Central Bank's programme to support the euro illegal. Now the European Court of Justice must find a way to make the programme acceptable without making it ineffective.

What can American policymakers learn from the experiences of European democracies? While we can look to our own history and to the ideas emanating from our own public sphere, by looking abroad we can also learn lessons from European policies – from both those that have proven successful and those that have failed. The contributors in this volume ex...

The process of European integration has encouraged a substantial judicialisation of politics across EU member states. Critics of ‘government by judges’ suggest that this judicialisation undermines democracy by substituting the decisions of unelected, unaccountable judges for those of elected officials. This article argues that on balance the judici...

An essay assessing Joseph Weiler's "Transformation of Europe," twenty years after that landmark paper's publication.

Much of the attention on the eurozone crisis has focused on agreements among national leaders, reactions in the bond markets and statements from credit rating agencies. However, the prospects for reform in the short term and for euro-area governance in the long term depend not only on national government preferences and market pressures, but on the...

This is an authoritative, one-volume, and independent treatment of the history, functioning, and nature of the European integration. Written by leading scholars, it covers the major institutions, policies, and events in the history of integration, whilst also providing a guide to the major theoretical approaches that have been used to study it over...

European integration is encouraging the judicialization of politics and the spread of a distinctive, juridified mode of governance we can refer to as ‘Eurolegalism’. The central argument of this article is that judicialization and the rise of Eurolegalism are not undermining democracy in Europe, as some critics would suggest, but are changing its c...

This article explores the politics behind the design of EU regulatory institutions. The EU has established an extensive ‘Eurocracy’ outside of the Commission hierarchy, including over 30 European agencies and a number of networks of national regulatory authorities (NRAs). The article examines the politics of institutional choice in the EU, explaini...

This article explores the political foundations of judicial independence in the European Union and asks to what degree is the ECJ insulated against court curbing mechanisms that might threaten judicial independence? The article reviews the major court curbing mechanisms identified in the literature on American law and politics and assesses the exte...

When environmental issues emerged on the international agenda in the late 1960s and early 1970s, the United States was of one of the strongest and most consistent supporters of international environmental treaties and agreements. The member states of the European Union subsequently ratified all the international treaties created in this period, but...

Approaches to disability policy have undergone a radical re-orientation across Europe and North America in the last twenty-five years. They have shifted away from a welfare-based model towards a rights model, which emphasizes the equality rights of persons with disabilities. This relatively rapid, cross-national paradigm shift, in the face of insti...

Abstract This article explores the EU’s efforts to ‘globalize’ EU environmentalregulation. EU leadership on global environmental governance emerged as the result of the combined effects of domestic ,politics and international regulatory competition. The growing power of environmental interests in Europe from the late 1980s, coupled with dynamics,of...

At least since Montesquieu (1989) published his The Spirit of Laws in 1748, scholars of comparative law have used metaphors relating to climate and soil when explaining differences in national legal systems (Watson 2003, p.293). The law is described as a sensitive plant that reflects the terroir – the combined effects of the local soil, climate and...

This book gathers together leading scholars in the field to assess key literatures shaping the discipline today and to help set the direction of research in the decade ahead. The study of law and politics is one of the foundation stones of the discipline of political science, and it has been one of the most productive areas of cross-fertilization b...

Adversarial legalism, an approach to law and regulation long considered distinctive to the US, is spreading across the European Union (EU). The EU's institutional structure and its ongoing project of market integration generate political incentives and functional pressures that encourage EU policy-makers to rely on adversarial legalism as an approa...

Adversarial legalism - an approach to regulation characterized by strict, legalistic enforcement of detailed legal norms, relying on active judicial intervention and frequent private litigation - has historically been viewed as a uniquely 'American' legal style. This paper argues that the process of European integration is encouraging the spread of...

This book deals with the interdisciplinary connections of the study of law and politics. It discusses jurisprudence and the philosophy of law, constitutional law, politics and theory, judicial politics, and law and society. The book reviews three prominent traditions in the empirical analysis of law and politics and, indeed, politics more broadly:...

This 2007 volume is intended to help readers understand the relationship between international law and international relations (IL/IR). As a testament to this dynamic area of inquiry, new research on IL/IR is now being published in a growing list of traditional law reviews and disciplinary journals. The excerpted articles in this volume, all of whi...

The causal logic behind many arguments in historical institutionalism emphasizes the enduring impact of choices made during critical junctures in history. These choices close off alternative options and lead to the establishment of institutions that generate self-reinforcing path-dependent processes. Despite the theoretical and practical importance...

Many academic analysts have greeted EU efforts to promote ‘new modes of governance’ including the Open Method of Co-ordination (OMC) with enthusiasm. Most of the literature on EU governance suggests that the introduction of new modes of governance is desirable and that the OMC and other new modes of governance are likely to play a greater role in E...

A possible breakdown of the European Union (EU) is the permanent crisis the EU faces today. The formal renunciation of the Treaties by all member states, the vacating of offices in Brussels, Strasbourg and Luxembourg constitute a breakdown. Consequently, gradual atrophy might happen with the resurgence of protectionism, the erosion of the Single Ma...

This article develops a conceptual framework linking processes of regional integration with transformations in litigation. The analysis fuses the work of American public law scholars and European integration experts to examine if, how, and why an American “adversarial legalism”-style is developing in the European Union (EU), why this is causally li...

Independent agencies like those common in the US federal government have proliferated in the EU in recent years. The EU has increasingly adopted a 'hub and spoke' model of bureaucracy, with independent agencies appended to the central Brussels administration. Some analyses attribute this format to the pursuit of efficient governance in a thinly-str...

We welcome David Levi-Faur s critique of our article, both because it serves to stimulate debate on this important topic and because it provides us with the opportunity to elaborate on our arguments and touch on their wider potential applicability. Levi-Faur does not take issue with our central empirical finding that American legal style is spreadi...

A substantial body of research suggests that the United States has a distinctive legal style characterized by detailed rules, extensive transparency requirements, adversarial procedures for dispute resolution, costly legal contestation involving many lawyers, and frequent judicial intervention in administrative affairs. Recently, scholars of compar...

Examines the impact of EU institutional structure on individual rights litigation. Kelemen argues that EU institutions have encouraged a particular type of law and regulation, 'adversarial legalism', a factor that has led to an increased amount of litigation by both public authorities and private parties. The analysis illustrates how the creation o...

-

This article analyzes European Union (EU) politics through the lens of comparative federalism. The article assesses the contributions that rationalist and constructivist approaches can make to the analysis of EU federalism, focusing on two broad questions. First, what explains shifts in authority from the state (i.e., member states) to the federal...

We develop a game theoretic model of the conditions under which the European Court of Justice can be expected to take “adverse judgments” against European Union member governments and when the governments are likely to abide by these decisions. The model generates three hypotheses. First, the greater the clarity of EU case law precedent, the lesser...

The establishment of agencies at the European level is one of the most notable recent developments in EU regulatory policy. This article examines how politics has shaped the design of EU regulatory agencies. Building on the American politics literature on delegation, the article explains how principal-agent concerns and political compromise have in...

This article analyzes the politics of supranational dispute resolution, focusing on trade-environment disputes in the context of the European Union (EU) and General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO). The author analyzes how the interaction of political and legal pressures has influenced decision making by the Europe...

This article analyzes the development of environmental regulation in the European Union from the perspective of comparative federalism. It presents a theory of regulatory federalism that explains how the basic institutional structures of federal-type polities shape the development of regulatory policy. The article assesses the theory by systematica...

Abstract will be provided by author.

This paper explores both the politics behind and the policy impacts of the design of EU regulatory institutions. The EU has established an extensive ‘Eurocracy’ outside of the Commission hierarchy, including over two dozen European agencies and a number of networks of national regulatory authorities (NRAs). Building on research on the politics of E...

[From the introduction] As we approach the fiftieth anniversary of the Treaty of Rome, we again confront the question of whether the EU is on its last legs. Are today’s dire predictions any more credible than those made twenty-five years ago? Are the EU’s institutional arrangements fragile? Are they in danger of collapsing under the weight of enlar...

Submitted to the Department of Political Science. Copyright by the author. Thesis (Ph. D.)--Stanford University, 1998.

This book examines patterns of environmental regulation in the European Union and four federal polities--the United States, Germany, Australia, and Canada. Daniel Kelemen develops a theory of regulatory federalism based on his comparative study, arguing that the greater the fragmentation of power at the federal level, the less discretion is allotte...