How to Nail Down a Cloud: CJEU’s Construction of Jurisprudential Authority From A Network Perspectiv

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In Chapter 3, How to Nail Down a Cloud: CJEU’s Construction of Jurisprudential Authority from a Network Perspective, Amalie Frese addresses the central question of how the CJEU engages with its own past cases in its reasoning. The chapter focuses on how to identify the most legally authoritative precedents in the CJEU non-discrimination jurisprudence, which implies analyzing a large corpus of judgments. Frese shows empirically how the corpus of CJEU judgments, created over the past sixty years, assigns different degrees of authority to each case according to how the court uses them. Using this empirical example, Frese shows that a network approach to the study of precedent provides a highly useful method, which has the specific advantage of shifting the viewpoint of which cases are authoritative, moving from the traditional legal scholarly to the CJEU’s own perspective, by tracing the references and citations to past references that the court itself is making in its judgments. In departing from traditional theories of what precedent is and how it can be binding, this chapter operationalizes the concept of precedent as, initially, a mathematical authority. By mapping all the references and citations between cases, it shows how the court itself creates legal ‘authorities’ in its jurisprudence as it cites some cases very frequently while others are much less cited. By highlighting how the network approach provides useful tools for understanding the CJEU’s reasoning and decision-making practices, the chapter also shows how this approach can refine and supplement, rather than substitute, EU law doctrinal analyses.
Original languageEnglish
Title of host publicationResearching the European Court of Justice : Methodological Shifts and Law’s Embeddedness
EditorsMichael Rask Madsen, Fernanda Nicola, Antonie Vauchez
Number of pages33
PublisherCambridge University Press
Publication date2022
Pages49-81
Chapter3
ISBN (Electronic)9781009049818
DOIs
Publication statusPublished - 2022

ID: 250177822