December 14, 2010

Court Citation of Foreign Legal Opinions

Martin Gelter, Fordham University School of Law and the European Corporate Governance Institute, has published Language, Legal Origins, and Culture before the Courts: Cross‐Citations between Supreme Courts in Europe as Fordham Law Legal Studies Research Paper No. 1719183. Here is the abstract.

Should courts consider cases from other jurisdictions? The use of foreign law precedent has sparked considerable debate in the United States, and this question is also controversially discussed in Europe. In this paper and within the larger research project from which it has developed, we study the dialogue between different European supreme courts quantitatively. Using legal databases in Austria, Belgium, England and Wales, France, Germany, Ireland, Italy, the Netherlands, Spain, and Switzerland, we have hand-collected a dataset of transnational citations between the highest courts of these countries, in total searching 636,172 decisions decided between 2000 and 2007. In the present paper we show that citation of foreign law by supreme courts is not an isolated phenomenon in Europe, but happens on a regular basis. We found 1,426 instances in which these courts have cited the supreme courts of the other nine countries. The majority (1,077) of these citations have been made for purely comparative reasons. We also undertook regression analysis in order to understand the differences between the cross-citations. Whether such citations take place and in what quantity depends on the particular legal culture and its relationship to others. Austria and Ireland, which stand in an asymmetric relationship with Germany and England respectively, seem to be particularly receptive to foreign influence on their legal systems. But even controlling for these outliers, we have been able to identify that the population of the cited country and a low level of corruption, native languages and language skills, legal origins and families, and cultural and political factors all matter for which courts are likely to be cited. More specifically, knowledge of the language of the cited court appears to be a more important factor driving cross-citations than legal traditions, culture or politics. Thus, to facilitate a transnational market of legal ideas, it can be suggested that courts should strive to make their decisions available in languages that possible readers understand.
Download the paper from SSRN at the link.

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