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


Martin Gelter


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, pp. 35-85
Fordham Law Legal Studies Research Paper No. 2330419

Abstract:     
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.

This paper is part of a research project comprising three articles. The other two articles can be downloaded at http://ssrn.com/abstract=1719183 and http://ssrn.com/abstract=2063598.

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, P48

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Date posted: September 27, 2013 ; Last revised: January 29, 2014

Suggested Citation

Gelter, Martin and Siems, Mathias M., Citations to Foreign Courts -- Illegitimate and Superfluous, or Unavoidable? Evidence from Europe (September 24, 2013). American Journal of Comparative Law, Vol. 62, No. 1, 2014, pp. 35-85; Fordham Law Legal Studies Research Paper No. 2330419. Available at SSRN: http://ssrn.com/abstract=2330419 or http://dx.doi.org/10.2139/ssrn.2330419

Contact Information

Martin Gelter (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
646-312-8752 (Phone)
HOME PAGE: http://law.fordham.edu/faculty/10929.htm
European Corporate Governance Institute (ECGI)
Brussels, B-1050
Belgium
HOME PAGE: http://www.ecgi.org/members_directory/member.php?member_id=621
Mathias M. Siems
Durham University - Durham Law School ( email )
50 North Bailey
Durham, County Durham DH1 3ET
United Kingdom
HOME PAGE: http://www.dur.ac.uk/mathias.siems
University of Cambridge - Centre for Business Research ( email )
Top Floor, Judge Business School Building
Trumpington Street
Cambridge, CB2 1AG
United Kingdom
HOME PAGE: http://www.cbr.cam.ac.uk/people/siems.htm
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