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Citations to Foreign Courts—Illegitimate and Superfluous, or Unavoidable? Evidence from Europe

Citations to Foreign Courts—Illegitimate and Superfluous, or Unavoidable? Evidence from Europe AbstractThe theoretical arguments in favor and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions as to their actual purpose. This Article aims to fill this gap in the literature. It offers quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. The Article highlights the often superficial nature of cross-citations in some courts. Yet, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics, such as undercutting national sovereignty or the legitimacy of the legal system. At best, cross-citations provide a source of inspiration to interpret national law. At worst, they are largely ornamental and of marginal help to make a particular policy argument more persuasive. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Citations to Foreign Courts—Illegitimate and Superfluous, or Unavoidable? Evidence from Europe

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Publisher
Oxford University Press
Copyright
© 2014 by The American Society of Comparative Law, Inc.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.5131/AJCL.2013.0012
Publisher site
See Article on Publisher Site

Abstract

AbstractThe theoretical arguments in favor and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions as to their actual purpose. This Article aims to fill this gap in the literature. It offers quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. The Article highlights the often superficial nature of cross-citations in some courts. Yet, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics, such as undercutting national sovereignty or the legitimacy of the legal system. At best, cross-citations provide a source of inspiration to interpret national law. At worst, they are largely ornamental and of marginal help to make a particular policy argument more persuasive.

Journal

American Journal of Comparative LawOxford University Press

Published: Jan 1, 2014

References