Citations to Foreign Courts -- Illegitimate and Superfluous, or Unavoidable? Evidence from Europe
Fordham University School of Law; European Corporate Governance Institute (ECGI)
Mathias M. Siems
Durham University - Durham Law School; University of Cambridge - Centre for Business Research
September 24, 2013
American Journal of Comparative Law, Vol. 62, No. 1, 2014, Forthcoming
Fordham Law Legal Studies Research Paper No. 2330419
The theoretical arguments in favour and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions about the actual use of cross-citations. This article aims to fill this gap. It provides 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. Overall, this article high-lights the often superficial nature of cross-citations in the some courts; yet, it also concludes that, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics of the practices, such as undercutting national sovereignty and the legitimacy of the legal system. At best, cross-citations provide a source of inspiration how to interpret national law. At worst, they are largely ornamental and marginally help to make a particular policy argument appear more persuasive.
Number of Pages in PDF File: 43
Keywords: Cross-Citations, Supreme Courts, Legal Origins, Legal Culture, Comparative Law, Comparative Civil Procedure
JEL Classification: A12, A13, B52, C21, C24, K00, K41, P48working papers series
Date posted: September 27, 2013
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