The Order for Reference as Steadying Factor II: A Frozen Record from Below

Cotter, John

Abstract

In this chapter, it is argued that the Order for Reference, in a manner consistent with Karl Llewellyn's seventh steadying factor ('a frozen record from below') serves to narrow the decisional discretion of the Court of Justice by removing from its decisional competence one of the leading causes of indeterminacy in court cases: fact finding. The chapter commences with a discussion of Llewellyn's exposition of his seventh steadying factor, as well as its origin within an earlier debate between Llewellyn and another prominent legal realist, Jerome Frank. The chapter then proceeds to examine Llewellyn's seventh 'steadying factor' in the context of the preliminary reference procedure, and in particular the Order for Reference, before drawing conclusions on the role of the Order for Reference as a 'frozen record' in contributing to the steadying of prospective preliminary rulings.

• Acceptance Date: May 6, 2022
• Publication Date: May 6, 2022
• Deposit Date: Jun 2, 2023
• Pages: 197-208
• ISBN: 9781788979559; 9781788979542; 9781788979559
• DOI: https://doi.org/10.4337/9781788979559.00020