Leveling and Spotlighting: How the European Court of Justice Favors the Weak to Promote its Legitimacy

Abstract

As private actors turn to international courts (ICs), we argue that judges can seize individual rights litigation to promote themselves as protectors of the weak. By leveling the odds for less resourceful individuals and spotlighting their rights claims, ICs can cultivate support networks in civil society. We verify this legitimation strategy by scrutinizing the first IC with private access: the European Court of Justice (ECJ). Often cast as a stealthy pro-business court, we show that ECJ judges instead publicized themselves as individual rights promoters: do they match words with deeds? Leveraging an original dataset, we find that the ECJ “levels,” favoring individuals’ rights claims compared to claims by businesses boasting larger, more experienced legal teams. The ECJ also “spotlights” support for individuals through press releases that lawyers amplify in law journals. Our findings challenge the view that ICs build legitimacy by stealth and the “haves” come out ahead in litigation.

Keywords: Judicial Politics, European Court of Justice, Litigation, Party Capability, Legitimacy, Institutions, Judicialization of Politics, Law Journals, International Courts, Comparative Law, Legal Mobilization, Judicial Behavior, Inequality