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, pp. 35-85
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.
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
Date posted: September 27, 2013 ; Last revised: January 29, 2014