Daniel Halberstam (U Michigan) has published Constitutional Pluralism in Marbury and Van Gend on SSRN (forthcoming in: 'THE PAST AND THE FUTURE OF EU LAW: REVISITING THE CLASSICS ON THE 50TH ANNIVERSARY OF THE ROME TREATY', M.P. Maduro, L. Azoulai, eds., 2008). This is the abstract:
The European Court of Justice's landmark decision in Van Gend en Loos is often casually compared to Marbury v. Madison simply because in each case a central high court declares itself to be the final arbiter of central government law. But there is a good deal more to the comparison than this. Both cases serve up what is perhaps the single most profound and complex issue in their respective constitutional systems: multiple competing claims of ultimate legal authority. In addressing this issue, both decisions make important claims for central judicial authority. And yet, neither decision successfully establishes a central judicial monopoly over final legal authority. Instead, both decisions inaugurate a tradition of mutual accommodation among the competing actors lasting to this very day. By juxtaposing accommodation in the two systems, we may understand these practices better than if we limit ourselves to only one or the other legal order. In particular, we recognize that actors in both systems rely on considerations of voice, expertise, and rights to manage the pluralist standoff.