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Network Analysis and the Use of Precedent in the Case Law of the CJEU – A Reply to Derlén and Lindholm

Published online by Cambridge University Press:  06 March 2019

Jens Frankenreiter

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During the last decades, social network analysis has been established as a key technique in a number of disciplines in social science. Its main promise is that it provides tools for researchers to take into account the social context of individual entities or actors. Legal scholars, by contrast, have only recently started to make use of these tools. Nowadays, one particularly prominent application is the use of network analysis to analyze the citation networks of different national and international courts. The contribution by Derlén and Lindholm published in this issue of the German Law Journal forms part of this trend. It is the latest in a series of papers studying citations in the case law of the Court of Justice of the European Union (CJEU). Unlike the authors' previous contributions, the paper specifically addresses the use of precedent by the CJEU and assesses the merits of criticism in the literature arguing that the citation practice of the CJEU lacks an acceptable method. The paper provides novel insights into the use of precedent by the CJEU and thus makes an interesting contribution to the emerging scholarship investigating the decision-making of the CJEU by means of quantitative analysis. At the same time, the design of the research raises severe doubts about whether the authors succeed in providing a conclusive response to the critics of the CJEU's citation practice.

Type
Special Section Network Analysis and Comparative Law Methods
Information
German Law Journal , Volume 18 , Issue 3 , 01 May 2017 , pp. 687 - 694
Copyright
Copyright © 2017 by German Law Journal, Inc. 

References

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2 Ryan Whalen, Legal Networks: The Promises and Challenges of Legal Network Analysis, 2016 Michigan State law Review 539, 547 (2016) (providing an overview on previous work in this area and other applications in legal research). There are other examples of research using a similar approach to the one in the present paper. See Fowler, James H. et al., Network Analysis and the Law: Measuring the Legal Importance of Precedent at the U.S. Supreme Court, 15 Political Analysis 324 (2007) (in the context of the Supreme Court of the United States); Jonathan Lupu and Erik Voeten, Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights, 42 British Journal of Political Science 413 (2011) (in the context of the European Court of Human Rights).Google Scholar

3 See Mattias Derlén & Johan Lindholm, Characteristics of Precedent: The Case Law of the European Court of Justice in Three Dimensions, 16 German Law Journal 1073 (2015); Mattias Derlén and Johan Lindholm, Goodbye van Gend en Loos, Hello Bosman? Using Network Analysis to Measure the Importance of Individual CJEU Judgments, 20 European Law Journal 667 (2014); Mattias Derlén et al., Coherence out of Chaos: Mapping European Union Law by Running Randomly Through the Maze of CJEU Case Law, 2013 Europarättslig tidskrift 517 (2013).Google Scholar

4 See, e.g., Arnull, Anthony, Owning up to Fallibility: Precedent and the European Court of Justice, 30 Common Market Law Review 253 (1993); Barceló, John J., Precedent in European Community Law, in Interpreting Precedents – A Comparative Study 407, 416 (D. Neil MacCormick & Summers, Robert S. eds., 1997).Google Scholar

5 For example, Arnull accused the Court of ignoring and obscuring the meaning of prior judgments in contradiction with the Court's argument. See Arnull, supra note 4.Google Scholar

6 More precisely, the authors seem to use only judgments issued between 1954 and May 2011 by the highest branch of the CJEU, the Court of Justice.Google Scholar

7 See Choi, Stephen J. & G. Mitu Gulati, Bias in Judicial Citations: A Window into the Behavior of Judges?, 37 Journal of Legal Studies 87 (2008); Choi, Stephen J. & G. Mitu Gulati, Ranking Judges According to Citation Bias (as a Means to Reduce Bias), 82 Notre Dame law Review 1279 (2007); Clark, Tom S. & Benjamin Lauderdale, Locating Supreme Court Opinions in Doctrine Space, 54 American Journal of Political Science 871 (2010); Cross, Frank B., The Ideology of Supreme Court Opinions and Citations, 97 Iowa law Review 693 (2012); Landes, William M., Lawrence Lessig, and Solimine, Michael E., Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 Journal of Legal Studies 271 (1998); Landes, William M. & Posner, Richard A., Citations, Age, Fame, and the Web, 29 The Journal of Legal Studies 319 (2000); Anthony Niblett & Yoon, Albert H., Judicial Disharmony: A Study of Dissent, 42 International Review of Law and Economics 60 (2015).Google Scholar

8 See also Whalen, supra note 2, at 543, 549.Google Scholar

9 Note that it has long been established in other disciplines which dealt with power law distributions that these distributions can be the result of random growth processes. See Gabaix, Xavier, Zipf's Law for Cities: An Explanation, 114 The Quarterly Journal of Economics 739 (1999).Google Scholar

10 In statistics the term “critical region” denotes the hypothetical set of results that allow for a rejection of a null hypothesis. In the present context, critical area would comprise those results that are incompatible with the hypothesis that the use of citations by the CJEU is unacceptable or incompatible with a case-law system.Google Scholar

11 See also Hall, Mark A. & Wright, Ronald F., Systematic Content Analysis of Judicial Opinions, 96 California Law Review 63, 78 (2008).Google Scholar

12 Fowler, James H. & Sangick Jeon, The Authority of Supreme Court Precedent, 30 Social Networks 16, 19 (2008).Google Scholar

13 Id. Google Scholar

14 The question whether precedent effectively constrains the justices of the SCOTUS is controversial. See Segal, Jeffrey A. & Spaeth, Harold J., The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, 40 American Journal of Political Science 971 (1996).Google Scholar

15 Whalen, supra note 2, at 556.Google Scholar

16 More precisely, such a theory would allow the development of reasoned expectations about how the presence of certain features of a legal system affects the citations network, which in turn would allow for the drawing of inferences from the data by means of hypothesis testing.Google Scholar

17 Authority score is a measure of the centrality of a node in a network based on the number and centrality of nodes linking to this node.Google Scholar

18 Derlén & Lindholm, along with others, have also conducted research on the potential of authority scores to serve as a proxy for the importance of a decision in the context of the CJEU and the SCOTUS. See, e.g., Derlén & Lindholm, supra note 3; Fowler et al., supra note 2.Google Scholar

19 Some studies have used measures derived from network analysis as the dependent variable in statistical analyses. See Yonatan Lupu & Fowler, James H., Strategic Citations to Precedent on the U.S. Supreme Court, 42 The Journal of Legal Studies 151 (2013); Lupu & Voeten, supra note 2.Google Scholar