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Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union
University of Gothenburg.
University of Oslo.
Umeå University, Faculty of Social Sciences, Department of Law.
Umeå University, Faculty of Social Sciences, Department of Law.ORCID iD: 0000-0001-6009-7412
2016 (English)In: Comparative Political Studies, ISSN 0010-4140, E-ISSN 1552-3829Article in journal (Refereed) Epub ahead of print
Abstract [en]

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. 

Place, publisher, year, edition, pages
2016.
Keyword [en]
law and courts, EU politics and policy, network analysis, EU law
National Category
Law (excluding Law and Society) Political Science (excluding Public Administration Studies and Globalization Studies)
Research subject
europarätt; Political Science; Law
Identifiers
URN: urn:nbn:se:umu:diva-119342DOI: 10.1177/0010414016639709OAI: oai:DiVA.org:umu-119342DiVA: diva2:920270
Funder
Swedish Research Council
Available from: 2016-04-18 Created: 2016-04-18 Last updated: 2016-04-21

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Derlén, MattiasLindholm, Johan
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Comparative Political Studies
Law (excluding Law and Society)Political Science (excluding Public Administration Studies and Globalization Studies)

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