Decoding judicial cross-citations: how do European judges engage with foreign case law?

Abstract

How do judges engage with foreign case law? While prior research identified some instances where courts are willing to cite foreign judgments, details about the mode of engagement and the motivation of such cross-citations are often left unexplored. This article aims to fill these gaps. It presents the results of the coding of a sample of 456 judgments with cross-citations between the private law supreme courts of 28 European countries. Twenty-five variables were coded for each citation: for example, the length of the discussion of foreign case law, whether the court was interested in the result or the reasoning of foreign judgments, and whether the citations occurred within the context of EU law, international law and/or specific areas of the law. The aim of this article is to present and contextualize (i.e., to “decode”) this quantitative information. We observe that many of the cross-citations do not provide a detailed analysis of the foreign case law, though courts from common law countries provide a greater depth of engagement with it than those from civil law countries. More generally, we find a form of bifurcation of citations across many of the topics analyzed in this article, as we often observe a divide not between common and civil law countries but between courts from smaller and larger jurisdictions.