Editor. CQ Press, 2014.
Co-edited with Susanne Schmidt. Routledge, 2012.
Cambridge, MA: Harvard University Press, 2011 [Replication Data]
Winner, 2013 European Union Studies Association Book Prize for Best Book on the European Union published in 2011 or 2012.
Foreign Affairs Best Book of 2011 on Western Europe (one of three books on Western Europe to receive this honor).
Co-edited with Keith Whittington and Greg Caldeira.
Oxford University Press, 2008.
Harvard University Press, 2004.
Selected Articles in Political Science Journals
“How Theories of State-building Explain the European Union,” article with Kathleen McNamara, Comparative Political Studies, 55(6) (2021), pp. 963-991. DOI: 10.1177/00104140211047393
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 outcomes of EU governance. Historically, political projects centralizing power have been most complete when both market and security pressures are present to generate state formation. With the EU, market forces have had a far greater influence than immediate military threats. We offer a preliminary demonstration of the promise of this approach by applying it to two empirical examples, the euro and the Schengen area. Our analysis suggests that the EU does not need to be a Weberian state, nor be destined to become one, for the state-building perspective to shed new light on its processes of political development.
“Epilogue: A Note of Caution on Differentiated Integration,"Swiss Political Science Review, 27(3) (2021), pp.672-681.
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 a positive light as a set of institutional arrangements that is likely to enhance the legitimacy and democratic accountability of the EU. This epilogue calls into question some of the main benefits widely associated with differentiated integration and emphasizes instead its dangers. The epilogue underlines some reasons why differentiated integration may be problematic from a democratic standpoint and explains why, if taken to an extreme, differentiated integration could even encourage the disintegration of the EU.
“Failing Forward? Crises and Patterns of European Integration,” with Erik Jones and Sophie Meunier, Journal of European Public Policy, 28(10) (2021), pp. 1519-1536.
In our contribution to this new wave of integration theory (Jones et al., 2016), we bridged the liberal institutionalist and neo-functionalist traditions to argue that in some circumstances European integration proceeded through a pattern of failing forward: in an initial phase, lowest common denominator intergovernmental bargains led to the creation of incomplete institutions, which in turn sowed the seeds of future crises, which then propelled deeper integration through reformed but still incomplete institutions – thus setting the stage for the process to move integration forward.
“Is Differentiation possible in rule of law?,” Comparative European Politics, 17(2019), Special Issue on “Imagining the Future of Europe,” edited by Sergio Fabbrini and Vivien Schmidt, pp. 246-60.
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 the fundamental rule of law principles on which the EU is based. This article assesses whether the model of differentiated integration can be applied to help the EU address this rule of law crisis. In recent years, many analysts have called on the EU to embrace a model of differentiated integration as a way to address its many challenges, and some have suggested that versions of differentiation might help the EU resolve tensions with its member states concerning the rule of law. By contrast, this article will argue that differentiation in the rule of law and the theory of constitutional pluralism that some use to justify it are neither normatively desirable nor practically feasible models. In short, we must reject differentiated integration when it comes to rule of law.
"The Political Geography of Legal Integration: Visualizing Institutional Change in the European Union," with Tommaso Pavone. World Politics (2018), doi: 10.1017/S0043887118000011
Earlier version was winner of Wilson Award, American Political Science Association French Politics Group, for best paper presented at 2016 APSA Meeting.
This article explores how the EU’s legal order has developed and expanded over space and time. Over the past six decades, the architects of the EU legal order have layered new supranational institutions atop existing national legal orders while seeking to convert national judiciaries into EU courts. Specifically, we analyze how this process has been affected by its interaction with the preexisting judicial orders of its member states. In so doing, we show how these institutional developments not only have a temporal dimension that can be uncovered via time-series analysis, process tracing, and comparative historical analysis,8 but also have a spatial structure that can be visualized and analyzed through mapping.9 By theorizing and empirically evaluating the political geography of European legal integration, our approach demonstrates how scholars can literally “see” historical institutionalism at work.
"Europe's Other Democratic Deficit: National Authoritarianism in Europe's Democratic Union," Government and Opposition, 52, 2(2017), pp. 211-238.
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 exist at the national level in member states and that the EU may have a role in addressing them. This article will place the EU’s struggles with democratic deficits in its member states in comparative perspective, drawing on the experience of other democracies that have struggled with pockets of subnational authoritarianism. Comparative analysis suggests that considerations driven by partisan politics may allow local pockets of autocracy to persist within otherwise democratic political unions.
"Can Courts Rescue National Democracy? Judicial Safeguards against Democratic Backsliding in the EU," with Michael Blauberger, Journal of European Public Policy, 24,3 (2017).
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 Commission and private enforcement litigation in national courts. At the same time, we highlight risks inherent in many proposals for novel judicial tools to defend national democracy. We conclude that despite their importance, judicial safeguards alone – whether existing ones or novel proposals – will not suffice to stop democratic backsliding by a determined national government: if the Union is to rein in such attacks on its core values, heads of government and other EU leaders will have to intervene politically as well.
Selected Articles in Law Journals
“Appeasement, ad infinitum,” Maastricht Journal of European and Comparative Law, 29, 2 (2022), pp. 177-181.
Never underestimate the European Commission’s willingness to appease Europe’s pet autocrats.1 While the EU has made an impressive show of unity in standing up to the murderous dictator Vladimir Putin in response to his unprovoked invasion of Ukraine, EU leaders continue to refuse to stand up to the softer autocrats in their own ranks. The capacity of the von der Leyen Commission (and of Commissions before it) to contrive excuses for refusing to enforce the EU rule of law norms that all Member States have committed to respect is something awesome to behold. The excuses keep changing, but the procrastination and appeasement are consistent
"The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland,” with Laurent Pech, Cambridge Yearbook of European Legal Studies, 21 (2019), pp. 59–74 doi:10.1017/cel.2019.11
Earlier version published as, “Why Autocrats Love Constitutional Pluralism and Constitutional Identity,” RECONNECT (Reconciling Europe with its Citizens through Democracy and Rule of Law) Working Paper No. 2, Available at https://reconnect-europe.eu/wp-content/uploads/2018/10/RECONNECT- WorkingPaper2-Kelemen-Pech-LP-KO.pdf
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 of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.
"The Court of Justice of the European Union in the Twenty-first Century," Law & Contemporary Problems, 79 (2016), pp.117-140.
Although the European Court of Justice (ECJ)'s authority is in many respects more extensive than ever before, the Court faces a number of new risks in its external context and it must tread carefully as its terrain grows more treacherous. Part II of this article analyzes the impact of geopolitical context on the development of the Court’s authority. This article shows that the early Court benefited from a very supportive geopolitical context, but recent changes have rendered its geopolitical context more threatening. Part III analyzes how the EU’s initial focus on the single market as a core subject matter supported the extension of its authority and how the spread of the Court’s jurisdiction to more controversial subject matters poses new challenges to this authority. Part IV focuses on the ECJ’s constituencies, highlighting the impact of member governments, national courts, and the broader European legal field on the development of the Court’s authority. In particular, recent changes in the ECJ’s constituencies context present the Court with new risks.
"The United States, the European Union and International Environmental Law," with Tim Knievel, 13,4 (2015) I-CON: International Journal of Constitutional Law, pp.945-65.
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 the 1970s, with the EU largely following the American lead. Some have cited the US reluctance to engage on recent major MEAs as evidence of a diminishing American commitment to international environmental law, given prominent domestic political opposition to agreements like the Kyoto Protocol and the Convention on Biological Diversity. This position overlooks the enduring US commitment to previously ratified MEAs, and its general compliance with other major agreements that it has yet to formally ratify. Furthermore, while the EU has clearly become a major player in the realm of international environmental law, its embrace of major MEAs is driven primarily by domestic economic interests more than any abstract commitment to international law as such. We therefore argue that varying levels of commitment to substantive environmental policy goals at the domestic level, rather than varying levels of commitment to international law, may best explain US and EU positions concerning international environmental policy.
Selected Book Chapters and Articles in Non-Peer Reviewed Journals
“Commitment for Cowards: Why the judicialization of austerity is bad policy and even worse politics,” In Constitutions in Times of Financial Crisis, Tom Ginsburg, Mark Rosen, and Georg Vanberg and (eds.), Cambridge University Press, 2019, pp. 146- 62.
"Assessing the Transformation of Europe: A View from Political Science," with Alec Stone Sweet. In Miguel Maduro and Marlene Wind, eds, The Transformation of Europe: Twenty-Five Years On, Cambridge University Press, 2017, pp.193-205.
"Kagan's Atlantic Crossing: Adversarial legalism, Eurolegalism and cooperative legalism in European regulatory style," with Francesca Bignami. In Varieties of Legal Order, Thomas Burke and Jeb Barnes (eds.), Routledge, 2017, pp.81-97.
"Towards a New Constitutional Architecture in the European Union?," In What Form of Government for the European Union and the Eurozone?, Federico Fabbrini, Ernst Ballin and Han Somsen (eds.), Hart Publishing, 2015, pp.197-216.
Selected Work in Progress
The European Law State, book project.
“Out of Sight Out of Mind? Voter Attitudes about Cooperation with Radical Parties in Europe,” with Jonathan Slapin, Michele Fenzl and Pit Rieger, manuscript under review.
"Federalism and Democratic Backsliding in Comparative Perspective,” with Robert R. Kaufman and Burcu Kolcak, manuscript.
"Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union,” With Tommaso Pavone. (December 27, 2021).
Available at SSRN: https://ssrn.com/abstract=3994918 or http://dx.doi.org/10.2139/ssrn.3994918
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 against European Union member states. While the Commission’s legislative role as “engine of integration” has been controversial, its enforcement role as “guardian of the Treaties” has been viewed as less contentious. Yet after 2004, infringements launched by the Commission plummeted. Triangulating between infringement statistics and elite interviews, we trace how the Commission grew alarmed that aggressive enforcement was jeopardizing intergovernmental support for its policy proposals. By embracing dialogue with governments over robust enforcement, the Commission sacrificed its role as guardian of the Treaties to safeguard its role as engine of integration. Our analysis holds broader implications for the study of forbearance in international organizations.
“Pecunia non olet? The Political Economy of Financial Flows into Democratic Backsliders,” with Julia Gray and Terence Teo, manuscript being prepared for submission.