Beyond principals and agents: Seeing courts as organizations by comparing référendaires at the European Court of Justice and law clerks at the U.S. Supreme Court

Scholars have long recognized the importance of the European Court of Justice (ECJ) as an active court and an engine of European integration. Few, however, have peered inside the black box of the institution to look at the individuals who do the work or to analyze the ECJ as an organization. Law clerks at the ECJ, called référendaires, are drawn from the ranks of lawyers, legal academics, legal administrators, and judges. They provide valuable legal and linguistic expertise, ease the workload of their members, participate in oral and written interactions between cabinets, and provide continuity as members rapidly change. Although they have more power than their counterparts in the United States Supreme Court, they are not the puppeteers of the members, but their agents. Focusing on the purported unchecked power of clerks distracts us from examining the important institutional consequences of changes in workload or an expansion of members.