Borrowing and Non-Borrowing among International Courts
Posted: 13 May 2009 Last revised: 28 Feb 2010
Date Written: May 11, 2009
Why do some international courts and judges extensively cite decisions from other courts whereas others do not? I examine what light theories of transjudicial communication shed on this question. I then confront these theoretical expectations with a global analysis of cross-citation patterns and an in-depth analysis of citations to and from the European Court of Human Rights (ECtHR). This yields four conclusions. First, contrary to its transnationalist reputation, the ECtHR rarely cites other courts in majority judgments, although ECtHR judges do so regularly in separate opinions. Second, ideology matters. ECtHR judges who are more inclined towards an expansive interpretation of the Convention (“activists”) are more likely to use external citations. Third, there are large asymmetries in the extent to which international courts rely on each other’s jurisprudence. This finding is contrary to the hypothesis that transjudicial communication is driven by reciprocity principles. Fourth, the evidence is consistent with the notion that judges sometimes refrain from citing external sources for strategic reasons.
Keywords: international courts, judicial behavior, transjudicial communication
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