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‘Great cases, like hard cases, make bad law’, Oliver Wendell Holmes, Jr, famously remarked in his first Supreme Court dissent. For Holmes, ‘great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment’. On this account neither Marbury v Madison70 nor Van Gend en Loos would qualify. Van Gend was a case of great principle without greatly interesting facts. And Marbury was a great political battle that nevertheless produced a case of great principle.


Published as Halberstam, Daniel. "Pluralism in Marbury and Van Gend." In The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty, edited by Luis M. P. P. Maduro and Loïc Azoulai, 26-36. Oxford: Hart Publishing, 2010. Available from Bloomsbury Publishing.