EUPoLex Jean Monnet Seminar with Jaka Kukavica

Fits like a Glove?: How do Courts Gauge and Use Consensus to Decide Cases

Many of the highest courts around the world have been seized in the past decades to decide on delicate moral and ethical questions: the death penalty, abortion, artificial insemination, voting rights of prisoners, or LGBT and Roma rights. More often than not, courts in different structural contexts and multilevel arrangements—for instance SCOTUS, CJEU, or the ECtHR—have justified their decisions in such sensitive cases through an underexplored and undertheorised method of interpretation: consensus analysis. This talk, which is based on a forthcoming PhD thesis, takes stock of the different structural contexts in which courts operate and use consensus analysis and explores the following research question: ‘Do courts employ consensus analysis in a way in which it fits the structure of the multilevel system in which they operate?’ It explores this question by building its conception of ‘fit’ based on Dworkinian and structuralist theory; it deconstructs consensus analysis to explain how it relates to structure; and it employs these theoretical musings to analyse the jurisprudence of four courts and decision-making bodies: SCOTUS, CJEU, the ECtHR, and the UNHRC.

Speaker bio

Jaka Kukavica is a PhD Researcher at the European University Institute in Florence, Italy. His research interests are in the fields of constitutional law, EU law (and its history), human rights law, and comparative law. Jaka worked as a researcher on the 'The Court of Justice in the Archives' project at the Academy of European Law and the 'Judicial Networks between Supreme Courts in Europe' project led by Mathias Siems. In 2021, he was an International and Comparative Law Research Scholar at University of Michigan Law School. Jaka is the Head of Section for European Law at the European Journal of Legal Studies and he previously served as an Editor of the Cambridge International Law Journal. Before commencing his doctoral project, he studied law at Ljubljana and Cambridge.

At iCourts, Jaka will work towards finalising the manuscript of his doctoral thesis, in which he examines the relationship between the structure of various multilevel polities and the types of consensus analysis domestic and international courts use when interpreting legal norms. He will also be working on Urška Šadl’s Under the Influence project.

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https://ucph-ku.zoom.us/j/62749217893?pwd=TEtqR2F2VTNpSVBFMWRsbEtNQUtoQT09

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