Precedent in the Sui Generis Legal Order: A Mine Run Approach

• Published date: 01 July 2014
• Author: Sigrid Hink,Urska Sadl
• DOI: http://doi.org/10.1111/eulj.12075
• Date: 01 July 2014

Precedent in the Sui Generis Legal Order:

A Mine Run Approach

Urska Sadl* and Sigrid Hink*

Abstract: In this article, we use case-to-case citation networks to explore the force of

precedent in EU law. We introduce a novel methodology to analyse the extent to which

references to past decisions act as reasons for decisions in subsequent cases and illustrate

the approach on the European citizenship case-law citation network. We conclude that

the cohesive pull of precedent in EU citizenship case-law is too weak to generate a

coherent judicial doctrine, thereby confirming qualitative research on the subject.

However, the incursions into competences of the Member States in areas, found only

tangential to EU citizenship, form a more consistent underlying story.

I Introduction

Most lawyers and political scientists would agree that judicial process is far more

sophisticated than the technique of a slot machine and far more complex than what

formal theories of judging suggest. However, they would probably disagree about the

ways in which it is possible to address this complexity,1and accurately describe the

‘reality’ behind judge-made law and the ways in which it affects us.2

* Urska Sadl, Assistant Professor, Faculty of Law, Copenhagen; Sigrid Hink, LLM Student, Faculty of

Law, Copenhagen.

1‘To the political scientist, legal scholarship often appears to be arid, technical, a theoretical (apart from

the “metatheoretical” branches of legal and constitutional theory), full of unstated or unproven assump-

tions, lacking empirical support and seemingly disinterested in the actual dynamics of social and political

change. To the lawyer, political science scholarship often appears to be obsessed with methodology,

jargonistic and—in particular when it engages with law—remarkably banal, in that pages are spent

demonstrating a proposition, which lawyers take to be axiomatic (such as that “courts matter” or

“judges have some autonomy”)’. G. D. Burca, ‘Rethinking Law in Neofunctionalist Theory’, (2005) 12

Journal of European Public Policy 310, 314.

2We are here referring to the discussion about how much law matters. Social scientists (mainly from the

US) have explored the influence of politics in judicial decision making and came to strikingly diverse

conclusions (B. Z. Tamanaha, ‘The Distorting Slant in Quantitative Studies of Judging’, (2009) 50

Boston College Law Review 685). The impact of ‘ideology’ was found to be small and, most of all,

extremely difficult to measure (ibid at 723). A question has also been raised whether the empirical studies

on ‘measuring justice’ have been asking the right questions about judicial decision making (J. Knight,

‘Are Empiricists Asking the Right Questions About Judicial Decisionmaking?’, (2008–2009) 58 Duke

Law Journal 1531). And perhaps the most devastating critique, social sciences do not provide us with

reliable knowledge and understanding of adjudication. They are said to be only slightly better in

predicting judicial outcomes than flipping a coin. B. Leiter, Naturalizing Jurisprudence: Essays on

American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007).

bs_bs_banner

European Law Journal, Vol. 20, No. 4, July 2014, pp. 544–567.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

On the surface, network approaches can seem nothing more than the latest twist of

the never ending efforts to quantify legal phenomena.3However, they differ from

previous social scientific research, in that they do not derive their conclusions from

tenuous (to lawyers) measures of judicial behaviour, but focus instead on the

interconnectedness of judicial decisions and their content. This resonates with the way

lawyers imagine law as a web of norms and brings them closer to legal studies in terms

of research material. A set of connections between cases, meaning case citations,

serves as a basis for further inquiries into legal structures. With a systematic study of

citation patterns in this structure, they can importantly contribute to the qualitative

studies of judicial decision making and precedent.4Most studies, using techniques and

methods of social network analysis, combine political and social science, mathematics,

information technology, physics and statistics, and less frequently law.

The pioneering work was carried out in the United States on the jurisprudence of

the United States Supreme Court (hereinafter: USSC), engaging with the ever intri-

guing notion of judicial activism5and the rise of stare decisis, and suggesting that the

USSC judges behaved strategically; for instance, citing more cases when they over-

ruled precedents.6A similarly comprehensive study was conducted on the case-law of

the European Court of Human Rights (Court of Human Rights), asking the question

why and how international courts justified their decisions by referring to their case-

law.7Closely following the methodology used on the USSC case-law, the study

focused on the incentive structure of international judges, and their strategic use of

citations. It found that the Court of Human Rights judges cited more precedents

when they ruled against national governments, in politically sensitive cases, and when

they communicated with common law countries.8The use of citation networks on the

case-law of the Court of Justice of the European Union (hereinafter Court of Justice,

Court), and the rulings of the Appellate Body of the World Trade Organization, are

in a fledgling but promising stage.9

Generally, the existing studies, focusing on case centrality, can successfully map the

structure of the case-law, but they are not able to say anything about the ‘legal

quality’ of case to case citations, the dynamics behind citation patterns and their

precise interconnectedness to specific outcomes. Moreover, they cannot differentiate

between the modes of citations. From the structure, it is impossible to deduce whether

a cited case was cited in a string citation, as an example or as—on the surface level—a

genuine reason for the decision. This information is crucial for the assessment of

precedential constraint.

3For an overview, see T. S. Clark and B. E. Lauderdale, ‘The Genealogy of Law’, (2012) 20 Political

Analysis 329.

4J. H. Fowler and S. Jeon, ‘The Authority of Supreme Court Precedent’, (2008) 30 Social Networks 16.

5J. H. Fowler and S. Jeon, ‘The Authority of Supreme Court Precedent’. A court, disrespectful of

precedent (an activist court), will cite fewer precedents than a court, which is less activist (such a court

will embed its decision in previous case-law).

6ibid at 17.

7Y. Lupu and E. Voeten, ‘Precedent in International Courts: A Network Analysis of Case Citations by

the European Court of Human Rights’, (2012) 42 British Journal of Political Science 413.

8Y. Lupu and E Voeten, ‘Precedent in International Courts’, 438.

9A. Mirshahvalad, et al., ‘Significant Communities in Large Sparse Networks’, (2012) 7 PLoS ONE

e33721; J. Lindholm and M. Derlén, ‘The Court of Justice and the Ankara Agreement: Exploring the

Empirical Approach’, (2012) Europarättslig tidskrift 462. For WTO, see K. J. Pelc, ‘Shaping Precedent

in International Trade Law: A Social Network Application’, paper presented at Judicial Institutions:

Courts in Domestic and International Affairs, Princeton (19–20 October 2012).

July 2014 Precedent in the Sui Generis Legal Order

545

© 2013 John Wiley & Sons Ltd.