Abstract
Many judicial systems utilize a process, often known as a referral process, in which one court has the ability to call upon another court, particularly a superior court, for definitive interpretations of law. This referral process is perhaps most widely known from its use in the European Court of Justice (ECJ), which has long thrived on receiving referrals (known as preliminary references) from national courts within the European Union. Yet, the ECJ’s preliminary reference process is itself derived from the constitutional referral processes previously adopted in several national judiciaries of the EU member states, notably Germany and Italy. This Article examines the constitutional referral process at the national level, using data from the German Constitutional Court and interviews with constitutional court and lower court judges to examine why lower ordinary courts refer cases to their national constitutional courts. There currently is a lack of theory and data examining why lower ordinary courts choose to refer certain cases to the national or federal constitutional court. This Article, then, is among the first to examine the factors—including policy issues, legal doctrine, and lower court characteristics—that might influence constitutional referrals.
Recommended Citation
Benjamin Bricker,
Referrals to National Constitutional Courts: A Preliminary Examination,
48
S. Ill. U. L.J.
361
(2024).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol48/iss3/4