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Citations to Foreign Courts – Illegitimate and Superfluous, or Unavoidable? Evidence from Europe

Gelter, Martin; Siems, Mathias

Citations to Foreign Courts – Illegitimate and Superfluous, or Unavoidable? Evidence from Europe Thumbnail


Authors

Martin Gelter

Mathias Siems



Abstract

The theoretical arguments in favor and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions as to their actual purpose. This Article aims to fill this gap in the literature. It offers quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. The Article highlights the often superficial nature of cross-citations in some courts. Yet, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics, such as undercutting national sovereignty or the legitimacy of the legal system. At best, cross-citations provide a source of inspiration to interpret national law. At worst, they are largely ornamental and of marginal help to make a particular policy argument more persuasive.

Citation

Gelter, M., & Siems, M. (2014). Citations to Foreign Courts – Illegitimate and Superfluous, or Unavoidable? Evidence from Europe. The American Journal of Comparative Law, 62(1), 35-85. https://doi.org/10.5131/ajcl.2013.0012

Journal Article Type Article
Acceptance Date Sep 10, 2013
Online Publication Date Jan 1, 2014
Publication Date Jan 1, 2014
Deposit Date May 20, 2014
Publicly Available Date Jan 5, 2016
Journal American Journal of Comparative Law
Print ISSN 0002-919X
Publisher American Society of Comparative Law
Peer Reviewed Peer Reviewed
Volume 62
Issue 1
Pages 35-85
DOI https://doi.org/10.5131/ajcl.2013.0012

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Copyright Statement
This is a pre-copyedited, author-produced PDF of an article accepted for publication in American journal of comparative law following peer review. The version of record Gelter, Martin and Siems, Mathias (2014) 'Citations to foreign courts – illegitimate and superfluous, or unavoidable? Evidence from Europe.', American journal of comparative law., 62 (1). pp. 35-85 is available online at: http://dx.doi.org/10.5131/AJCL.2013.0012





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