Nikos Lavranos (European University Institute) has posted On Misguided Judicial Deference by the ECJ and ECRTHR (DISPUTE RESOLUTION, C. Baudenbacher, ed., German Law Publishers, 2009) on SSRN. Here is the abstract:
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This contribution analyzes several cases in which both the ECJ and ECrtHR showed a misguided deference by not actually deciding the case but rather rendering unconvincing judgments. It is argued that in highly sensitive case, courts should instead refuse to be abused by parties for resolving disputes that should rather be solved by political decisions.