TY - CHAP

T1 - How to Nail Down a Cloud

T2 - CJEU’s Construction of Jurisprudential Authority From A Network Perspectiv

AU - Frese, Amalie

N1 - Part I - Cases

PY - 2022

Y1 - 2022

N2 - 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.

AB - 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.

U2 - 10.1017/9781009049818.004

DO - 10.1017/9781009049818.004

M3 - Book chapter

SP - 49

EP - 81

BT - Researching the European Court of Justice

A2 - Rask Madsen, Michael

A2 - Nicola, Fernanda

A2 - Vauchez, Antonie

PB - Cambridge University Press

ER -