The Shape and Structure of the ‘Usable Past’: An Empirical Analysis of the use of Precedent in International Adjudication
Niccolò Ridi, The Shape and Structure of the ‘Usable Past’: An Empirical Analysis of the Use of Precedent in International Adjudication, Journal of International Dispute Settlement, Volume 10, Issue 2, June 2019, Pages 200–247
45 Pages Posted: 23 Aug 2019
Date Written: January 01, 2019
How do international adjudicators use precedent? This question has been addressed several times in the literature, but doctrinal accounts have generally failed to consider the aggregate dimension of the phenomenon. This article seeks to provide an alternative outlook by offering a large-scale computational analysis of the body of jurisprudence of three international fora (the ICJ, the WTO Appellate Body and investment arbitration tribunals) and comparing their citation patterns with those of other judicial bodies—national and international. Building on a very large dataset (comprising over 200,000 citations), it employs network analysis tools to measure the evolution of international law citation networks. It then unpacks this emerging complexity by considering what, in a precedent, holds ‘citing value’, highlighting the expansion of the range of precedential resources as well as the consecration of established authorities. Finally, the article considers three examples of computational analysis of citations to precedent in order to better gauge the level of engagement with the past.
Keywords: Precedent, Network analysis, International Courts, International Adjudication, Computational analysis of law
JEL Classification: K33, K41
Suggested Citation: Suggested Citation