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Women’s Rights, the European Court, and Supranational Constitutionalism Rachel A. Cichowski This analysis examines supranational constitutionalism in the European Un- ion (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women’s rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women’s advocates F both individual activists and groups F have played in the development of EU social provisions. The Fndings suggest that this litigation dynamic can have the effect of fueling the integra- tion process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state govern- ment control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for ex- amining the case law in subsequent legal domains, with the purpose of pro- viding a more nuanced understanding of supranational governance and constitutionalism. I n the last forty years, we have witnessed the evolution of an unprecedented form of supranational governance in Western Eu- rope: the European Union (EU). The European Court of Justice (ECJ) has played a powerful role in this transformation. The Court’s activism in the 1960s and 1970s is now widely accepted as having transformed the Treaty of Rome, an international treaty governing nation-state economic cooperation, into a ‘‘supranation- al constitution’’ granting rights to individual citizens (Lenaerts 1990; Mancini 1989; Weiler 1981, 1991). The Treaty of Rome stands today as the backbone of a supranational legal regime Law & Society Review, Volume 38, Number 3 (2004) r 2004 by The Law and Society Association. All rights reserved. 489 The author wishes to acknowledge the MacArthur ±oundation and the Woodrow Wil- son ±oundation for generously supporting the data collection included in this analysis. The study also beneFted from the invaluable comments of Alec Stone Sweet and many scholars at the European University Institute, ±iesole, Italy, where I conducted the research. I would also like to thank the special issue editor, Kim Lane Scheppele, and two reviewers for insightful comments on both the empirical analysis and the pregnancy case law. An earlier version of the pregnancy and maternity case law analysis appears in Cichowski (2001). Address correspondence to Rachel Cichowski, Assistant Professor, Department of Political Science, University of Washington, Box 353530, Seattle, WA 98195; e-mail:
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governing not only transnational free trade issues but also national women’s rights provisions. How did this remarkable transformation take place? How did the text of an international treaty that was mainly concerned with protecting businesses from unfair competition evolve into an elab- orate set of policy arenas and procedures that today govern wom- en’s rights throughout Europe? And subsequently, has this
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