Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union

Abstract

We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications-by embedding its decisions in case law-when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.

Delayed but not derailed: legislative compliance with European Court of Human Rights judgments

“…Furthermore, the relationship between judicial dissent and compliance means that judges can influence the reception of their judgment by their actions. This finding contributes to the scholarship on domestic and international courts that argue that persuading external audiences of the legal qualities of judgments is important for courts when they face a hostile compliance environment (Hume 2006, Voeten 2012, Larsson et al 2017. While existing scholarship has demonstrated that courts act strategically to influence their perceived legitimacy when they face political challenges, we show that there is indeed a relationship between one characteristic of the judicial output likely to influence perceived legitimacy -judicial dissent -and the likelihood of compliance.…”

“…Furthermore, our findings indicate that striving for unanimity should be an important strategy for courts that confront significant compliance challenges. This resonates with the literature that argues that courts frequently use rhetorical legitimation strategies when they face an adverse political environment (Hume 2006, Lupu and Voeten 2012, Larsson et al 2017. These scholars have assumed that perceptions of legal authority are crucial for how judgments are received, and that courts seek to persuade relevant audiences of the legal authority of their decisions.…”

“…Chapter 3 moves from the question of why some compliance processes are more difficult than others to the question of whether courts can act in ways that increase the prospects of prompt compliance. While a growing literature has argued that courts act strategically to influence the likelihood of prompt compliance (Staton and Vanberg 2008, Lupu and Voeten 2012, Larsson et al 2017, less is known about whether such strategies are effective (but see Staton and Romero forthcom-ing).…”

“…One example concerns the use of citations to increase the legitimacy of decisions. Previous scholarship (Larsson et al 2017), including in the ECtHR context (Lupu and Voeten 2012), suggests that such practices are strategically aimed towards affecting the reception of challenging judgments. Scholars have, however, not investigated whether citation practices actually facilitate compliance.…”

“…Judicial power is often limited by courts' reliance on other actors to implement their rulings (Vanberg 2001;, Carrubba, Gabel and Hankla 2008, Rosenberg 2008, Kapiszewski and Taylor 2013, Hall 2014, Carrubba and Gabel 2015, Johns 2015). 1 To promote compliance, courts therefore employ strategies aimed at legitimizing their judgments (Hume 2006, Lupu and Voeten 2012, Larsson et al 2017, at raising public awareness (Staton 2006, Krehbiel 2016a, and at enabling procompliance constituencies to monitor implementation (Gauri, Staton and I investigate judges' ability to promote compliance in the context of the European Court of Human Rights (ECtHR). Despite being considered "the most effective human rights regime in the world" (Stone Sweet and Keller 2008), the ECtHR faces significant compliance problems (Hillebrecht 2014a;.…”