Thoughts from a Bridge: Europe and American Federalism.

• Author: Reitz, John C.

THOUGHTS FROM A BRIDGE: A RETROSPECTIVE ON NEW EUROPE AND AMERICAN FEDERALISM. By Eric Stein. Ann Arbor: University of Michigan Press. 2000. Pp. xvii, 497. $69.50.

It is obvious to specialists in the law of the European Union ("E.U.")--a relatively small but steadily growing group in the United States--that a "retrospective" collection of Eric Stein's (1) writings would be of great interest. From his 1955 article in the Columbia Law Review, the first article about the Court of Justice of the European Coal and Steel Community to appear in English (p. 473), he has been one of the dominant U.S. scholars of what was initially called "European Community" ("E.C.") law after the three original European Communities (2) and more recently has been rechristened "European Union" law after the creation of the E.U. around and on top of (3) the original Communities in the Treaty of Maastricht in 1992. (4) But this book, which won the 2001 University of Michigan Press Book Award, deserves a much wider readership. It is a fine collection of the craft of comparative law, covering much more than E.U. law, and it also has a very personal aspect that makes it a rich memento of the author and many of the people with whom he has worked.

It may be foolhardy to write a review of a book that comes with a "built-in" review, so to speak, and one that says with great acumen most of the really important things that should be said about Stein's work. Joseph Weiler, another distinguished E.U. scholar and former colleague of Stein's, has written a Foreword (p. ix) with his customary exuberance and insight that neatly exposes the deepest values of Stein's work with an inimitable and compelling style. (5) Yet, while warmly commending Weiler's Foreword to the reader, I will venture another review, but from a slightly different angle. After a brief overview of the book and its special personal elements, I will focus on some specific aspects of Stein's comparative law craftsmanship and conclude by discussing two of the general issues about divided-powers systems that are raised by the materials in the book.

1. OVERVIEW OF THE BOOK AND ITS PERSONAL ELEMENTS

   The collection is "retrospective" not only in the sense of a selection of some of Stein's finest work over a career spanning more than half a century, but also in the sense that Stein has annotated each piece with a short introduction putting the piece in context both within his own career and the other pieces in the volume, as well as sketching out some of the major legal developments since the original date of publication that would have to be taken into account in updating to the publication of this volume (2000). (6) The method of updating and commenting on the original text through introductory notes gives the book a touch of the Talmud or Gothofredus' Digest and postmodernism at the same time. It should be noted, however, that the book is not meant to be a summing up of Stein's career. There are important aspects that are not touched upon by the materials in the book. For example, in addition to a heavy focus on E.U. law, Stein had a substantial career as a public international lawyer for the U.S. government before coming to Michigan to teach, and thereafter he continued to be involved in international law, teaching and writing especially about arms control.

   The book is divided into a short "Introduction," three major sections, and a short "Coda." The Introduction sounds the main theme in its title, "Five Variations on a Theme: Divided-Power Systems." Part 1, entitled "Constitutionalizing, Harmonizing," is focused on the E.C./E.U. and contains a classic piece on E.U. law which makes a fine introduction to E.U. law and hence ought to be considered for inclusion in teaching materials. The article, "Lawyers, Judges, and the Making of a Transnational Constitution," is his 1981 study of the role of the European Court of Justice in advancing European integration (p. 15). It focuses on the seminal cases in which the Court enunciated the key integrating doctrines (supremacy of Community law and direct effects, as well as the scope of the treaty-making power) that have solidified the powers of the then-E.C, government. The other essay in Part 1 is a 1971 study of the making of the First Coordination Directive, the first exercise of Community power to coordinate member state law, in this case on the subject of corporation (in the E.C. called "company") law (p. 50).

   The second part of the book, which contains the most explicitly comparative pieces about the E.U. and is appropriately entitled "European Integration and the American Federal Experience," begins with his classic 1977 essay on "Uses, Misuses--and Nonuses of Comparative Law" (p. 89), a general essay on the subject, which nicely states the promise of comparative studies and gives a still largely accurate assessment of the relative non-use of comparative law in the United States. Part Two also contains another classic piece worthy of consideration as an introduction to E.C./E.U. law, the magisterial comparison of the E.C. with the U.S. federal system, specially focusing on free movement of goods and persons (p. 112), which he coauthored with his Michigan colleague Terrance Sandalow for the 1982 book they jointly edited entitled Courts and Free Markets--Perspectives from the United States and Europe. The introductory note Stein wrote for that piece includes a page-length quotation from the introduction European Court of Justice ("ECJ") Judge Pierre Pescatore wrote for the 1982 book (pp. 113-14). Other selections in this part include a 1976 comparative study of standing under E.C. and U.S. federal law which Stein co-authored with Michigan colleague Joseph Vining (p. 161); a 1986 comparison of the foreign affairs powers under U.S. and E.C. law (p. 191), on which he collaborated with Columbia professor Louis Henkin; a guest editorial he published in the Common Market Law Review in 1992 entitled "Foreign Policy at Maastricht: `Non in Commotione Dominus'" (p. 304); a study of the forces for uniformity within the U.S. federal system (p. 309), also published in 1986; and a previously unpublished statement on Democracy without "a People," which he presented at conferences in 1998 and 1999.

   The selections in the third part (entitled "Europe's Burden of History") are not about E.U. law. They include his 1989 essay (p. 347) on the German criminal laws that have been interpreted to proscribe public statements propagating the so-called "Auschwitz lie," the claim that the Holocaust never happened; a collection of never-before published correspondence Stein received in reply to earlier published versions of that essay (p. 410); and selections from his 1997 book on the breakup of Czechoslovakia (p. 417). The "Coda" contains some short remarks entitled "Reminiscences of the Embryonic EEC," which he gave at a dinner in Villa Montaldo, Florence, in 1989 in celebration of his seventy-fifth birthday (p. 471) and some stylish remarks his wife Virginia Stein gave, apparently at the same occasion, entitled "A Million Footnotes" (pp. 476-77).

   The book thus consists of major studies Stein has already published, either alone or with others, one going back as far as 1971, supplemented by a number of statements from personal friends and colleagues of long standing, some relevant documentation (the correspondence on the "Auschwitz lie" issue), an editorial he wrote, an unpublished conference statement, an after-dinner speech, and some autobiographical writing. The autobiographical information comes chiefly in the introduction and coda and in the introductory notes he wrote for each essay, which often discuss how he came to undertake the particular study and how he saw it relating to his previous or subsequent work. The excerpt from the Preface to his book on the break-up of Czechoslovakia also describes his connection to that country (he was born, raised, and received his first law degree there), how he left in the wake of the German occupation in 1939, how he returned years later and was able to attend the fiftieth reunion of his high school (gymnasium) class only to witness the way that communism had wasted the lives of many of his classmates, how he left determined never to return, and how he nevertheless came to return to provide assistance in the preparation of a new constitution after the collapse of communism (pp. 418-19).

   The intrusion of such a personal note may seem especially surprising once you know Stein's writing style, of which Joseph Weiler quite accurately says in his Foreword that it "provides powerfully probative evidence for the qualities of temperance, suppression of the personal and the subjective in favor of a disciplined, rational discourse" (p. xiii). For that very reason, I am grateful for the more personal tone of the book. Something of the warm smile and engaged look of concern with which he greets students and former students shines through the pages, though in truth the book still provides only glimpses. The book is also a celebration of the rich human ties he has had in his professional life. The number of colleagues who have collaborated with him, either as coauthor, commentator on a draft, supplier of information or perspective which is documented in a footnote, or in some more organizational way is truly impressive, and his introductory notes tend to document the human connections in some detail. There is no doubt that Stein's ability to work with others is a very important ability which has contributed to the strength of his scholarship.

2. COMPARATIVE LAW CRAFTSMANSHIP

   I had the privilege in the mid-1970s to be a student in Eric Stein's class on what was then called, according to my still extant class notes, "Common Market Law." To this day, I remember being struck at the end of the course by the realization that, despite my expectation that the course would be about the law of another system, I found that I had also had a...